Socializer Engagement is an offer from MeMo News AG, Seestrasse 60, CH-6052 Hergiswil, Switzerland (hereinafter referred to as “MeMoNews”). These General Terms and Conditions of Business apply between MeMo News and the Customer (as stipulated in the Service Contract). MeMoNews and the Customer are hereinafter referred to as “parties”.
- Contractual object All services provided by MeMoNews are performed on the basis of a written or electronic Service Contract. It lists the brands or companies which are going to use Socializer Engagement, the persons who will need the access to the application and the costs incurred for the use. Socializer Engagement services may consist of an online editorial system, a reporting system, data analysis and other services developed, operated or maintained by MeMoNews and which can be accessed via socializer.one or other dedicated websites or IP addresses (“Services”). In accordance with these General Terms and Conditions of Business, this term also includes all ancillary services that were performed and made available to the Customer within the framework of Socializer Engagement tool under the terms of the Service Contract. In the event of a contradiction between the terms and conditions of the Service Contract and these General Terms and Conditions, the terms and conditions of the Service Contract shall prevail. A Service Contract is concluded by legally valid signatures or by the independent registration as a new Socializer Engagement user via the Internet. Unless otherwise stated, the term of a Service Contract for Pro versions is one calendar month. Socializer Engagement is currently in the beta phase.
- Terms of payment The details of the price and the charge rates for MeMoNews’ services, including fees and expenses, are set in the written Service Contract or in the Service Contract by registering as a new Socializer Engagement user. All MeMoNews’s accounts receivable are due on issuing the invoice for payment within 14 days without any deductions. In the event of a delay in payment, MeMoNews shall be entitled to charge default interest in the amount of 8 percentage points above the base interest rate. In addition, MeMoNews shall be entitled to suspend performance in whole or in part temporarily until full payment, if the Customer is in arrears with the payment of an amount of at least one monthly payment and the corresponding blockage has been threatened in writing at least 7 (seven) days in advance in the event of non-performance. MeMoNews stores the contents coordinated by Socializer Engagement for an indefinite period of time. However, MeMoNews is under no obligation to retain customer data or data coordinated by Socializer Engagement. MeMoNews is not obliged to retain customer data. All prices are net prices plus the applicable statutory value added tax, unless otherwise stated. An offset by the Customer is only permitted with an undisputed or legally effective claim. he customer can claim a right of retention only on account of claims arising from the same contract.
- Liability a) MeMoNews shall be liable under statutory regulations to the extent that the Customer asserts damage compensation claims based on intent or gross negligence, including intent or gross negligence on the part of MeMoNews’s representatives or agents. b) To the extent MeMoNews is accused of the simple negligent breach of a principle contractual obligation, the fulfilment of which was vital to the proper performance of the contract, the breach of which jeopardizes the achievement of the purpose of the contract and on observance the Customer may duly rely, MeMoNews’s liability for damages shall be limited to the reimbursement of the foreseeable, typically occurring damages. c) Liability arising from culpable injury to life, body or health shall remain unaffected; this shall also apply for compulsory liability in accordance with product liability law. d) The liability for all other damages is excluded e) MeMoNews is not liable for any damages caused by the use of Socializer Engagement, as Socializer Engagement as a tool (and therefore MeMoNews as operator) is not responsible for the coordinated contents. This responsibility lies with the persons operating Socializer Engagement and their clients.
- Utilisation rights With payment of the agreed remuneration and in accordance with the terms of the contract, MeMoNews shall give the Customer a non-exclusive, non-transferable, limited to the contractual period right to use the Socializer Engagement tool. a) MeMoNews (or MeMoNews’ respective licensor) owns all rights to software, its modifications, improvements, derived products in any form, format and medium that were performed by MeMoNews. b) The Customer is the owner of all worldwide rights to all materials and information provided to MeMoNews and grants MeMoNews the right to reproduce and publish them. This also includes his rights, which he sets in the form of graphics or other visible elements on his website or the social media networks, irrespective of the form, format, forum, medium, methods, whether these are already known at the time of the conclusion of the contract or only subsequently developed (hereinafter “customer contents”). With Socializer Engagement, MeMoNews offers only the technical option. The actual duplication and publication is therefore carried out on behalf of the Customer. c) The Service Contract does not constitute a purchase of any services provided by MeMoNews. Neither does the Service Contract confer any ownership rights to MeMoNews’ technology or other proprietary rights. The term “Socializer Engagement”, the Socializer Engagement logo and all product names associated with MeMoNews’ services are trademarks of MeMoNews or third parties and are protected accordingly. The Service Contract does not justify any kind of license of the Customer to use the trademarks. Similarly, the Service Contract does not create any proprietary rights in the Customer’s content or intellectual property rights in favour of MeMoNews. The name of the Customer, his logo and all other names and brands of the Customer, including those used on the Customer’s website, shall remain with the Customer. This Service Contract shall only entitle MeMoNews to use it to the extent necessary to perform the services in accordance with the Service Contract. d) Except as provided otherwise in the Service Contract, the Customer shall not (i) license, sublicense, sell, assign, transfer, distribute or otherwise make available to third parties the rights granted under the Service Contract, (ii) modify or create derivative works based on MeMoNews’ technology or the services, (iii) exploit the services in any commercial manner. Any violation of the duties of the clause. 4.d) (i) to (iii) constitutes a material breach of contract that entitles MeMoNews to terminate the agreement for cause. The Customer shall only be entitled to rights insofar as they have been expressly granted by MeMoNews. MeMoNews is only entitled to store, modify, analyze, reformat, print, display and disclose the customer’s data for internal business purposes and only pass them on to third parties if it is absolutely necessary for the fulfillment of the Service Contract. Unauthorized use, resale and commercial use of the services and/or customer’s data is expressly prohibited. The Service Contract does not in any way restrict MeMoNews’ ability to enter into contracts with third parties with comparable content.
- Warranty MeMoNews warrants (a) that it will perform all services with due care and appropriate qualifications and (b) ensure that its employees, agents and subcontractors act in a competent and professional manner and on the basis of generally accepted industry practices at the time of the conclusion of the contract. Unless otherwise agreed or required by law, MeMoNews makes no representations or warranties as to the results of any work performed. The agreement of a guarantee requires express and written confirmation from MeMoNews. Information in brochures and other documents is for description purposes only and does not constitute a guarantee, in particular no guarantee of quality. The use of the Internet, data exchange with social networks or other forms of electronic communications may cause limitations, delays or other problems with MeMoNews’ services. MeMoNews accepts no responsibility for delays, misdeliveries or other damages resulting from such problems.
- Contract duration and termination of contract The contract duration is derived from the Service Contract. The contract is extended for the duration of the Service Contract if the contract is not terminated at least 4 weeks before the end of the contract period. The right to terminate the contract for good cause remains unaffected. An important reason shall in particular be deemed to exist if one party (i) commits a material breach of contract and does not remedy this breach of contract within 14 days of receipt of a corresponding written request by the other party or (ii) becomes insolvent or if insolvency proceedings or comparable proceedings are filed for the assets of one party. It is a significant breach of contract in particular if the Customer defaults on his respective payment obligations in two successive invoice periods. An important reason is also given if the Customer uses the tool for spam purposes, i. e. sends a disproportionate number of messages in a short period of time. Prior to termination due to spam activity, MeMoNews will notify the Customer accordingly in order to limit the mass sending of messages. If the Customer does not limit his conduct sufficiently, MeMoNews shall be entitled to terminate the contract for good cause. In the event of termination of the Service Contract, the Customer shall be obligated to pay MeMoNews for the services rendered up to the point in time when the termination becomes effective, as well as any other remuneration.
- Communications and declarations All communications and declarations to which these terms refer are only legally effective if they have been delivered in written form and sent to the other party by registered letter to the address listed below or to the address previously communicated in writing by the other party.
- Jurisdiction and applicable law This Contract shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the UN Sales Convention. Place of jurisdiction is Bückeburg. However, MeMoNews is free to take legal action at the court responsible for the Customer’s place of business. Any exclusive place of jurisdiction shall be the primary place of jurisdiction.
- Data protection MeMoNews and the Customer shall comply with the data protection regulations applicable to the processing of the Service Contract.
- Confidentiality “Confidential Information” means information, trade secrets, documents and business transactions of the other party that have come to the knowledge of one party in connection with the performance of the Service Contract. Confidential information includes in particular copyrights, trademark rights, patents and other industrial property rights of MeMoNews. The parties agree to maintain the strictest confidentiality with each other, and in particular, the parties undertake to treat any information and data received in connection with the execution of the Service Contract as confidential and not to make it available to third parties. The obligation extends beyond the termination of the contract.
- Other If individual provisions of these General Terms and Conditions should be or become partly or wholly legally invalid, the validity of the remaining provisions will not be affected. The parties undertake to reach an agreement in place of the invalid clause, which corresponds as closely as possible to the commercial purpose of the invalid clause.
We will take such steps as we deem necessary to confirm your identity before sharing any personal data with you. We will respond to proper and confirmed requests relating to personal data within 30 days, or as otherwise required by applicable law.
6th May 2020