Terms and conditions mobalo GmbH
The following terms and conditions apply to the customer’s participation in the mobalo network operated by mobalo GmbH, Stollbergstr. 22, 80539 Munich (hereinafter referred to as “mobalo”):
1. Subject matter, scope
1.1.mobalo operates a real-time advertising network, which allows customers to place location-specific advertisements within online media (such as websites and apps) based on users’ current locations. The services provided by mobalo include the mobalo platform through which registered customers can make use of the free and paid content, features and services of the mobalo network currently available (hereinafter referred to simply as “services”) and enter into individual agreements for the implementation of advertising campaigns. Upon request, mobalo can also provide custom advertising, consulting, and technical services to support customers in achieving their advertising goals.
1.2. The use of the mobalo network is only permitted to natural and legal persons who are entrepreneurs as defined in §14 of the German Civil Code (BGB) and their employees authorised to represent them.
1.3. The following terms and conditions govern the use of all services provided by mobalo, unless otherwise expressly agreed. Customer terms and conditions will only apply if they have been expressly agreed in writing by mobalo.
1.4. For certain services, additional terms and conditions may be agreed with customers (hereinafter referred to as the “additional terms”). mobalo will notify customers before they make use of any such additional terms before they make use of said services.
1.5. mobalo is entitled to assign its rights or obligations arising from this agreement either in whole or in part to third parties.
2.1. The “mobalo network” is the advertising network operated and managed by mobalo, consisting of advertisers, publishers, and mobalo.
2.2. “Advertisers” are customers who use the mobalo network to carry out advertising.
2.3. “Publisher” are natural or legal persons that provide third parties with advertising space in an online medium for the display of advertising media. Publishers within the meaning of these terms are therefore operators of online media and operators of other advertising networks that arrange advertising space for mobalo in online media operated by other publishers.
2.4. The “mobalo platform” refers to all of the services available to registered customers who have logged into to the access-controlled section of the mobalo website.
2.5. “Advertising materials” includes the graphics, images, sounds, videos, URLs, program codes, texts, banners, and other data provided by the customer to mobalo in either digital or analogue form for use on advertising spaces. This includes material provided to mobalo whether intended for advertising purposes or not. Advertising materials therefore also includes data to be used for mere informational or entertainment purposes on advertising spaces.
2.6. “Online media” are publisher-operated information or communication media containing the advertising spaces. These can be standard and mobile sites, apps, blogs, social media streams, or emails.
2.7. “Advertising spaces” are an area within online media visible to users where advertisements will be displayed.
2.8. “Users” are natural persons who use online media as intended.
2.9. “Events” are technical processes which serve as the basis for customer billing. These can include hits, clicks, or sales.
2.10. “Campaigns” are binding customer orders given to mobalo for the placement of advertisements on advertising spaces within a specified period of time and/or budget.
3. Contract conclusion
3.1. The use of the mobalo network, the mobalo platform, individual mobalo services, and the implementation of campaigns presuppose the conclusion of one or more agreements between mobalo and the customer. Contracts can be conclude through the customers’ registration on the mobalo website as described in §4, using the order functions within the mobalo platform, or individually.
3.2. Unless otherwise provided herein or in any additional terms, the parties enter into a licence agreement for the relevant services (such as a campaign) when mobalo accepts a binding offer made by customers (such as by clicking the “Submit order” button) or when customers accept a binding offer made by mobalo (such as by email or by telephone).
3.3. Customer offers are deemed accepted by mobalo once mobalo provides the service ordered.
3.4. mobalo is under no obligation to accept a customer offer and may reject an offer without giving reasons.
3.5. If mobalo makes a binding offer to customers for certain services, said offer shall remain binding for 14 days from its receipt by the customer unless otherwise stipulated.
4. Concluding contracts by registration, customer accounts
4.1. The use of the mobalo platform requires customers to register with mobalo and set up accounts.
4.2. Registration is only permitted to persons who are not minors and who are fully permitted to enter into contracts as entrepreneurs within the meaning of §14 BGB. If a legal person, registration must be done by a legally competent natural person fully authorized to represent the same.
4.3. Customers must provide the information requested during registration (hereinafter referred to as “customer data”) both truthfully and completely. If the customer data subsequently changes, customers must update the same within the password-protected area of the mobalo platform without delay, or, if this is not possible, otherwise notify mobalo of the changes immediately (such as by email or fax).
4.4. Customers must select a password during the registration process. They can then login to the password-protected area of the mobalo platform with their email address and password (hereinafter referred to as “login data”) once registration is complete and the customer account has been set up. Customers must keep their login data secret and not disclose it to unauthorised third parties. If there is a concern that unauthorised third parties have gained or will gain knowledge of the login data, customers must notify mobalo immediately, change their password if they can, and provide any assistance mobalo may require to clarify the breach of security.
4.5. If registration is not completed, mobalo will delete all entries made by potential customers.
4.6. There is no right to a mobalo licence or customer account. mobalo may reject any registration without stating reasons. In this case, the information supplied by the customer will be deleted immediately.
5. mobalo platform
5.1. mobalo provides customers with various services for a specific time via the mobalo platform. Such services may include functions relating to the management of credit balances, issuing and managing advertising orders, setting up advertising materials (such as banner ads), defining target objects (such as URLs) and ad placement conditions (such as indicating user locations where they should be shown a particular advertisement), and the collection and analysis of event data.
5.2. The actual type and scope of the individual services shall be governed by the respective contractual agreements and by the descriptive texts for each of the services as currently shown in the password-protected customer area of the mobalo platform.
5.3. Unless mobalo offers third-party services to customers, mobalo is the sole provider of the services it offers. If customers make use of a third-party service offered on the mobalo platform, they are entering into a separate contract with that third-party service provider separate from the licence agreement with mobalo. That third-party service provide may have different terms and conditions and privacy policies. Any changes or disruptions to the services agreed between customers and said third parties shall have no bearing on the licence agreement with mobalo.
5.4. mobalo reserves the right to change or discontinue the services provided on the mobalo platform or to introduce new services unless these changes are unreasonable for the customer. In addition, mobalo is entitled to change or discontinue the services currently provided to the extent this is necessary to comply with legal, judicial, or regulatory requirements. In this case mobalo will take into account legitimate customer interests.
5.5.In addition, mobalo reserves to offer individual customers or groups of customers additional services or special rates, for example, free or discounted services for new customers. This does not create any obligation to offer other customers the same additional services or special conditions.
6. Collection of event data
6.1. Event data is collected by mobalo and then provided to customers via the mobalo platform or in the form of weekly reports sent by email.
6.2. Any objections to the event data reported must be made in writing to mobalo within 14 days after the end of that campaign. Thereafter, the data collected by mobalo shall be deemed approved.
6.3. Customers are entitled to use their own data collection processes to verify mobalo’s data protection, provided that they notify mobalo by text (email) in a timely manner and mobalo does not refuse for cause. mobalo will refuse such requests only if there are inadequate assurances that such processes will not affect mobalo’s own data collection process. When in doubt, customers are required to prove this at their own expense.
7. Fees, payment terms, arrears, offsets
7.1. The prices in place at the time each contract is concluded shall apply. For contracts concluded via the password-protected mobalo platform (such as agreements to run campaigns), the prices for these services shall be those in place when said contract is concluded. All prices, unless otherwise stated, do not include VAT.
7.2. Invoices can be made in electronic form and are due immediately. If customers have a balance due, payment is made with the credit balance in the customer account.
7.3. Any services ordered from mobalo for a certain period (such as monthly or subscription packages), these are payable in advance for the respective service period (usually 1 month).
7.4. If the parties have agreed on a fee model based on events, the fees payable are based on the event data measured as described in §6 above. If customers have been allowed to collect their own event data pursuant to §6.3. above, mobalo will only take these into account if customers can prove that their data deviates by more than 15% of that measured by mobalo. In this case, mobalo and the customer will make an effort to come to a mutual agreement.
7.5. mobalo reserves the right to block, restrict, or suspend customer accounts or individual services and benefits for the duration of any late payments, unless this action is disproportionate to the amount of the arrears.
7.6. Unless customers have the right to receive services in advance of payment, mobalo reserves the right to require advance payment from customers.
7.7. Customers may offset the amounts payable to mobalo only if such amounts have been court-ordered.
8. Campaigns, availability
8.1. In order for a campaign to be fully carried out, there must be a sufficient number of suitable publishers, online media, and users (i.e. users located at the defined locations). mobalo therefore cannot guarantee that any customer campaign can be carried out entirely within the specified timeframe.
8.2. Customers have no right to a certain visibility of advertisements on advertising spaces (e.g. visibility in a given pixel area).
8.3. If a customer campaign or other service cannot be carried out in whole or in part within the requested period, the credit balance in the customer account equal to that payable for the campaign not executed shall remain and be available for future campaigns. There is no right to refunds.
8.4. If customers are required to pay in advance and the services are to be provided by mobalo on a monthly basis, any services not used by customers within that month will not be carried forward to following months and will not be refunded.
8.5. Customers have no right to 100% availability of the mobalo network, the mobalo platform, or the services provided therein. Nevertheless, mobalo will strive for the maximum availability possible. Disruptions caused by necessary maintenance, technical failures, or events outside the control of mobalo events (such as the loss of power or communication networks’ going down ) cannot always be avoided. mobalo will take into account legitimate customer interests and provide notice of any planned maintenance measures in good time in an appropriate manner (such as by email or on the mobalo platform).
9. Special features of subscriptions
9.1. All subscriptions offered by mobalo have a minimum term found in the respective description or name of the subscription.
9.2. Subscriptions will automatically renew for another month at the end of their current terms. If mobalo increases the price for the subscription, there will be no automatic renewal. This does not apply if mobalo notifies the customer of the price increase at least 7 days before the next notice period (as defined in §9.5.) in an appropriate manner (such as email). In this case, the customer shall pay the increased price from the next renewal month.
9.3. Expressly limited subscriptions end automatically at the appointed time.
9.4. Any services not used by customers within a subscription month will not be carried forward to following months and will not be refunded.
9.5. Subscription fees are payable by customers on a monthly basis in advance.
9.6. Subscriptions may be terminated with 14 days’ notice prior to the end of the initial minimum term and with 7 days’ notice prior to the end of each renewal month (in the cause of automatic renewals).
10. Customer responsibilities and obligations
10.1. Customers will set up or transmit advertising material to the mobalo network as instructed in the mobalo guidelines for customers using the process provided and in particular comply with all of mobalo’s technical specifications.
10.2. Customers are fully responsible for their content. mobalo is entitled to, but not obliged to check advertisements for completeness, correctness, legality, timeliness, quality, and fitness for a particular purpose.
10.3. Customers are obligated
- not to set up any illegal or unlawful advertising materials on the mobalo platform nor any materials that violate these terms and conditions;
- to grant mobalo any required licences for the advertising materials as described in §11; and
- to notify mobalo immediately if they become aware that any of its materials are illegal or in breach of contract.
10.4. mobalo is entitled to, but not obliged to edit the advertising material in such a way as may be necessary or advisable in mobalo’s opinion to meet technical, legal, or contractual provisions, in particular to make the advertising materials recognisable as such. Where appropriate, mobalo is also entitled to block or delete content that breaches the rights of others.
11.1. By providing advertising materials, customers hereby grant mobalo a free, transferable licence to use the same anywhere within the terms of the services agreed between the parties. This right also includes its use on websites, mobile devices, in the context of social media services, or in emails.
11.2. Customer especially grant mobalo concerning the advertising materials provided rights to reproduce, edit, made publicly available, send, and otherwise publicly share, in particular, to make the content available for retrieval by any third parties (e.g. users) over the internet or other data networks, and to grant third parties the same rights, even if for a fee, to the extent necessary to ensure the functioning of the mobalo network or the provision of services under these terms. If customers remove the content they provide from the mobalo platform, the licence granted above is cancelled. However, mobalo remains entitled to retain for backup and/or archiving purposes any copies it may have made of the same. The rights to the advertising materials provided by customers already granted to third parties remain unaffected.
11.3. Customers warrant that they are entitled to grant the rights described in §§11.1. and 11.2. At mobalo’s request, customers will provide proof of said authority.
12.1. If customers have culpably breached one of their obligations from this contractual relationship with mobalo and this breach has resulted in the breach of third-party rights such that mobalo has been named party to a third-party claim, customers are obligated to hold mobalo harmless from any and all claims asserted by the same. Customers also agree to cover all necessary costs incurred by mobalo to mount its own legal defence.
13. Blocking of customer accounts
13.1. mobalo may temporarily or permanently suspend customer accounts or individual services if concrete indications suggest a breach of these terms and conditions and/or of applicable law, or if it in mobalo’s legitimate interest to do so. In deciding whether to suspend an account, mobalo will also consider legitimate customer interests.
13.2. mobalo will notify customers of such blocking (and its lifting, if a temporary block) by email.
13.3. Permanently locked customers may no longer use the mobalo network and may not re-register for a customer account.
14. Contract period, termination
14.1. The agreement for the use of the mobalo platform is concluded for an indefinite period and may be terminated by either party with 14 days’ notice prior to the end of each calendar month.
14.2. Contracts limited by account balance will run until the account balance is exhausted or their scheduled end date, whichever comes first.
14.3. §9.6 applies to the termination of subscriptions.
14.4. All contracts other than those described in §§14.1. to 14.3. are indefinite in duration unless otherwise agreed and may be terminated by either party with 30 days’ notice prior to the end of a calendar month.
14.5. The parties’ right to extraordinary termination for cause remains unaffected.
14.6. If there is a balance remaining in customer accounts upon termination of their use of the mobalo platform, this will be settled within a reasonable period and refunded to the customer. In all other cases, refunds of the credit balance is excluded.
14.7. All notices of termination must be in writing or made using the appropriate cancellation function within the mobalo platform (if available).
15. Limitation of Liability.
15.1. Should customers incur damage through the use of unpaid services, mobalo is only liable if said damage was caused in the scope of contractual use of the free services and only if caused with intention or gross negligence by mobalo.
15.2. In the case of damages arising from services provided for a fee, mobalo assumes unlimited liability only for those caused with intent or gross negligence by mobalo or its legal representatives, executives, or vicarious agents. For damages caused by the slight negligence of the same parties, mobalo’s liability is limited to those damages such as are typically associated and foreseeable with contractual relationships of this kind. The liability for damages caused by a slightly negligent breach of a cardinal obligation is likewise limited to €20,000 per claim and €40,000 in cases of injury.
15.3. Unless one of the situations listed in §15.1. exists, mobalo assumes no liability for indirect or consequential damages.
15.4. The above limitations will not apply in the case of malice, in the case of bodily or personal injury, breach of guarantees, and claims under the Product Liability Act.
16.1. mobalo reserves the right to amend these terms and conditions at any time, with immediate effect on existing contractual relationships, in order to regulate new, expanded, or changed services and to take into account changing legal, organisational, or technical conditions. mobalo will notify customers of any such modifications at least 30 calendar days before they are scheduled to take effect. If customers do not object to said changes within 30 days of receipt of notice and continue to use the services thereafter, said changes shall be deemed to have been accepted. mobalo will inform customers of their right to object and the subsequent consequences of failing to do so.
16.2. If customers reject the changes, the contract shall continue under the previous conditions, but mobalo reserves the right in this case to terminate said contract at the earliest opportunity.
17. Storage of contract text, applicable law, jurisdiction
17.1. mobalo does not store copies of these terms and conditions each time customers enter into a contract. The content of any agreement concluded with mobalo shall be based on the detailed offer and these terms. The customer can retrieve and save these terms in their current version at any time through the link on mobalo website.
17.2. The laws of the Federal Republic of Germany apply exclusively to this contractual relationship. The application of the UN Sales Convention is excluded.
17.3. If the customer is a merchant, a legal entity under public law, or a special public fund, the exclusive jurisdiction for any disputes arising under this contract shall be the seat of the mobalo.
Date: 24. Februar 2016