General Terms and Conditions (GTC) - Updated 11/2021
VAPA GmbH, Im MediaPark 5, 50670 Cologne (as: "VAPA" in the following) provides an online service for managing and optimizing advertising campaigns withAmazon Advertising, via https://www.vapa.ai ( as "VAPA Service" in the following).
In order to achieve this goal in the best possible way, VAPA will continuously develop the VAPA Service and adapt it to changes on the part of Amazon. The customer can specify in his login area which campaigns are going to be managed by the VAPA service, considering which KPIs. So that the system can manage the customer's campaigns, the customer must connect the VAPA service to his Amazon Advertising account. In this process no personal data is transmitted, but only all campaign data available via the Amazon Advertising API. This data includes:
• Campaigns
• Campaign Keywords
• Keyword Targeting
• Automatic Targeting
• Match Types
• Placements
• Budgets
• Campaign Reports
1. subject of the contract
1.1 These General Terms and Conditions (as: "GTC" in the following) shall apply to the use of the VAPA service available at www.VAPA.ai, password-protected VAPA service. VAPA offers this service to its customers (as: "Customers" in the following) for their commercial or self-employed professional activity. For consumers in the sense of § 13 BGB (German Civil Code), who use the services of VAPA neither for commercial or in the context of a self-employed professional activity, these GTC do not apply. By placing an order with VAPA, the customer acknowledges the latest valid version of the GTC at that time. The GTC can be viewed at any time on the VAPA website.
1.2 VAPA reserves the right to change the GTC and the subject matter of the relevant contractual services for valid reasons. This includes the change of the legal situation, technical changes or further developments or equivalent reasons, as far as these do not disadvantage the customer too much. VAPA shall notify its customers of any changes at least four weeks in advance in writing or by e-mail.The changed GTC shall automatically come into force unless the customer has objected to them in writing or by e-mail within a period of four weeks, in so far as VAPA has pointed out this circumstance. All further changes are subject to the explicit agreement of the customer. For services provided by the VAPA free of charge, VAPA shall be entitled at any time to change, cancel or replace the GTC with other GTC or to change the scope of services.
1.3 Deviating or conflicting GTC of the customer shall not become part of the contract. The GTC shall also not become part of the contract if VAPA has not explicitly objected to these GTC or accepts services from the customer without reservation in the knowledge of deviating or conflicting GTC.
2. conclusion of the contract
2.1 Prerequisite for the use is a registration. This is done by the customer at www.vapa.ai (online). Subsequently, the customer receives an e-mail with a confirmation and the request to activate the VAPA account. The activation of the account by the customer represents an order regarding the use of the VAPA service. A commitment to this for the customer is 14 days.
2.2. The contract shall only come into effect upon explicit acceptance of the order or through an initial performance of the service by VAPA. The activation of the customer's account alone does not constitute a contract. The optimization of a campaign provided by the customer by VAPA represents such an initial performance.
2.3 The acceptance of the order by VAPA is excluded after the expiry of the 14-day period, should the customer not have selected an optimization of a campaign or explicitly declared an acceptance to VAPA within this period.
3. object of the contract
3.1 For the duration of the contract, the subject matter of the contract shall be the provision of access and use of the VAPA service via the Internet in a paid form, or in a free form during the test phase.
3.2 A successful bidding strategy by VAPA is not owed. VAPA also does not owe, for example, to deliver a minimum number of clicks or conversions, to keep a certain CPC or to exhaust a given budget. Especially in case of a contradictory relationship between targeted number of clicks or conversions compared to the established budget. Amazon Advertising is very dynamic, so VAPA cannot be held responsible for a negative campaign performance trend. Using the VAPA service does not guarantee that the original level can be reached exactly. The customer is responsible for the success and the customer-specific settings made by him within the VAPA-service itself.
3.3 VAPA reserves the right to a test phase, which includes the free use of the services. A claim to such a phase is not given. Subsequently, if the customer does not continue to use the VAPA service, the account will be blocked by VAPA. The use is then no longer possible.
3.4 VAPA is aware of the importance of its services for its customers. Therefore, the service is available to them for use 24 hours a day, 365 days a year. VAPA guarantees an availability of the VAPA service of 99% on an annual average. If maintenance work is due and availability is restricted as a result, customers will of course be informed in good time. Any downtime of the VAPA service due to maintenance work will not be counted towards the availability owed. A responsibility of downtimes that are not within the sphere of influence of VAPA is excluded. This includes internet/network-related downtimes as well as those in which the hardware and software cannot be accessed via the internet due to technical or other problems (e.g. force majeure, fault of third parties, etc.).
3.5 VAPA does not gain access to Customer's Vendor Central Account or Seller Central Account by connecting the Amazon Advertising Account. In the course of connecting the Amazon Advertising Account, all available past information is used to train the VAPA service, including artificial intelligence.
4. Access to the VAPA service and related obligations of the customer
4.1 The VAPA service may only be used by one user at a time (concurrent user). Use by several concurrent users may impair the usability of the VAPA service and is therefore not permitted. The transfer of user data to third parties who are not the customer's legal representatives or employees is not permitted. VAPA reserves the right to name the individual authorized users. In this case, use is only permitted by the named persons.
4.2 The customer is obligated to provide complete and correct information when registering. This includes first and last name, current address, e-mail, company and the respective authorized representative. VAPA reserves the right to request from the customer a current excerpt from the commercial register or, if applicable, a valid trade license. VAPA must be informed immediately and without delay of any changes in the information provided.
4.3 In order to prevent misuse, the access data must be kept secret by the customer. Passing on to unauthorized third parties is not permitted and is considered as misuse. The customer is also obliged to maintain secrecy by the other users named by him. Any knowledge of misuse of access data must be reported immediately by e-mail to support@vapa.ai. In this case VAPA is entitled to block the access data immediately. The customer is liable for any misuse for which he or a user named by him is responsible.
4.4 Customer must have an Amazon Seller/Vendor account.
4.5 Customer is obligated to grant VAPA access to the respective required accesses to its Amazon Advertising accounts, depending on the service package used.
4.6 If the customer revokes VAPA's access to his Amazon Advertising account via the Amazon Advertising API prior to the expiration of the contract, he shall nevertheless remain obligated to pay the monthly fee owed until the end of the contract term. This also includes other reasons for which the customer is responsible and which do not enable VAPA to provide the contractual service.
4.7 VAPA is compatible with the current versions of Firefox and Google Chrome. The customer shall ensure that the latest version of these browsers is always available. This is the only way to achieve optimal performance of the VAPA service. The customer is responsible for the following: the existence of the technical requirements for access to the VAPA services, in particular regarding the hardware, the operating system, the connection to the Internet and the browser. The technical specifications issued by VAPA are to be observed.
4.8 The customer shall create backup copies of data before transferring them to an Amazon Advertising account used by VAPA. In the unlikely event of a loss of data, the customer shall transfer the relevant data to the Amazon account again free of charge.
4.9 The customer undertakes to provide VAPA with all necessary cooperation in a timely manner that is conducive to fulfillment. In this case VAPA is entitled to terminate the contract without notice, if the customer has been requested to provide the required service beforehand.
5. Rights of Use
5.1 During the term of the valid contract with VAPA, VAPA shall provide the customer with the non-exclusive (simple), non-transferable and non-sublicensable right of use corresponding to the respective contract "online" via the internet.
5.2 The customer has no right to be provided with copies of the VAPA software or other materials required for the VAPA service. All copyrights and other rights to any content of the VAPA services and in particular the VAPA software used for this purpose shall remain with VAPA.
5.3 The customer authorizes VAPA to edit, redesign, shorten, supplement or otherwise modify content provided for the creation of product presentations, in particular to combine such content. VAPA may sublicense or transfer these rights to cooperation partners and/or third parties for the purpose of fulfilling the contract.
5.4 The customer warrants and represents that the publication and dissemination of the contents by VAPA does not conflict with any intellectual property rights of third parties. The customer guarantees that he possesses all rights of use and exploitation (including the right to portray persons), unlimited in time and space, for transmitted pictures and other works protected by copyright, and that, if necessary, an effective waiver of naming the author exists. The customer shall indemnify VAPA upon first request against any claims by third parties for infringement of property rights through the use of the contents made available by the customer. The customer shall compensate VAPA for any damage resulting therefrom, in particular the costs according to RVG for a legal defense. In case of a warning based on competition and/or copyright law and/or other warnings based on intellectual property rights by third parties, 'VAPA is authorized to issue appropriate cease-and-desist declarations and to block and/or remove incriminated contents, presentations and/or links from portals until the matter has been legally decided. The customer is obliged to bear the costs incurred by VAPA as a result of the warning and the deletion. For the duration of the contractual relationship, the customer shall in this case also compensate for lost sales. Irrespective of this, each party is entitled to take appropriate legal measures in its own name, which will be coordinated with the other party. In the event that one party initiates legal proceedings, the other party shall be entitled but not obligated to participate in such proceedings, provided that there are no reasons worthy of legal protection that conflict therewith.
6. Warranty
6.1 Only if the VAPA service does not have the contractual quality and thereby the contractual use is cancelled or reduced, a material defect exists. An insignificant restriction of the suitability remains out of consideration.
6.2 In case of any problems the customer is obliged to inform VAPA immediately.
6.3 Within a reasonable period of time VAPA will take care of the elimination of the problems reported in writing by the customer.
6.4 Only after a reasonable period of time, or after failure of the remedy of the problem, the customer shall have the right to terminate the contract due to non-granting of use according to § 543 para. 2 no. 1 BGB.
6.5 The right of the customer to claim damages according to clause 7. as well as according to the legal requirements remains unaffected.
7. Liability
7.1 VAPA shall be liable without limitation within the framework of the statutory provisions in each case for damages
a)from injury to life, body or health, which are based on an intentional or negligent breach of duty or otherwise on intentional or negligent conduct on the part of VAPA or one of its legal representatives or vicarious agents;
b)due to the absence or omission of a warranted characteristic or in the event of non-compliance with a guarantee;
c)which are based on an intentional or grossly negligent breach of duty or otherwise on intentional or grossly negligent conduct on the part of VAPA or one of its legal representatives or vicarious agents.
7.2 VAPA shall be liable, limited to compensation for the foreseeable damage typical for this type of contract, for such damage that is based on a slightly negligent breach of essential obligations by the licensor (VAPA) or one of its legal representatives or vicarious agents. Material obligations are obligations the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer may rely.
7.3 The strict liability of VAPA according to § 536a para. 1, 1st alternative BGB (German Civil Code) due to defects which were already present at the time of the conclusion of the contract is excluded.
7.4 In the event of loss of data due to simple negligence, VAPA shall only be liable for the damage that would have been incurred even if the customer had properly and regularly backed up the data in a manner commensurate with the significance of the data; this limitation shall not apply if the backing up of the data was impeded or impossible for reasons for which VAPA is responsible.
7.5 The above provisions shall apply mutatis mutandis to the liability of VAPA with regard to the reimbursement of futile expenses.
7.6 Any liability under the Product Liability Act shall remain unaffected.
7.7 The liability of VAPA for services rendered within the free trial period shall be governed by §§ 599, 600 BGB and not by the provisions set forth above.
8. Remuneration and Billing
8.1 Unless otherwise agreed in writing by the parties, the prices of VAPA valid at the time of conclusion of the contract shall apply, available at www.VAPA.ai.
8.2 Unless otherwise agreed, the monthly basic charges and the variable monthly remuneration shall be due for payment in arrears at the end of the relevant calendar month. If the contract does not begin or end at the beginning or end of a calendar month, the basic fee and the variable remuneration shall be paid pro rata temporis. For the calculation of the variable remuneration, only sales are counted that are assigned to campaigns created via VAPA and, in the case of campaigns transferred to VAPA, campaigns managed by VAPA. In the event of termination of the contractual relationship, VAPA shall continue to be entitled to the monthly basic fee and the variable remuneration, regardless of the status (VAPA service activated or deactivated) of the campaigns created or managed by VAPA, until the end of the contract term.
8.3 Unless otherwise agreed, the variable remuneration to be paid by Customer shall be calculated on the basis of the data transmitted to VAPA by the Amazon Advertising API. Minor deviations from the data displayed to the customer by Amazon are possible and lie outside the sphere of influence of VAPA. In this respect, the data transmitted by the Amazon Advertising API to VAPA and displayed in VAPA is decisive.
8.4 All stated remunerations and prices are exclusive of the respective legally owed value added tax, insofar as this is not already shown.
8.5 In the event of default on the part of the customer, VAPA shall be entitled to block access to the VAPA service until all due claims arising from the entire business relationship with the customer, irrespective of the legal basis, have been settled by the customer. During the period of default, the customer shall pay interest on monetary debts in accordance with the statutory provisions.
8.6 The customer may only set off or assert a right of retention against legally established or undisputed claims. The customer may assign claims arising from this contract to third parties only with the written consent of VAPA.
9. test phase; start, term and termination of contracts
9.1 A free test phase shall commence upon conclusion of the contract and shall end after 30 days, unless a different period has been agreed or the contract has been terminated prematurely. Termination may be declared by the customer at any time during this phase without observing any time limit. During the test phase the use is free of charge. After expiry of the test phase, further use of the VAPA service is only possible by concluding a regular contract subject to a charge.
9.2 The contractual relationship concerning the paid use is unlimited. The contractual relationship may be terminated by either party at any time with three (3) months' notice to the end of the month. In the event of termination, VAPA may, at its sole discretion, archive the then current status of all or individual VAPA campaigns and restore the original status of the campaign(s) at the time of the expiration of the trial period or at the time of termination (whichever is earlier).
9.3 Termination without notice for cause remains valid for the customer as well as VAPA. The arrears of more than two months' remuneration shall constitute such an important reason for VAPA.
9.4 Access to the VAPA services may be blocked immediately by VAPA in case of such an important reason justifying termination without notice. At its own discretion, archive the then current status of all or individual VAPA campaigns and restore the original status of the campaign(s) at the time of expiration of the trial period or at the time of termination (whichever is earlier). The blocking shall also constitute termination without notice.
9.5 Cancellations must be made in writing or by e-mail. Customer's notices of termination shall be sent by e-mail to support@vapa.ai.
9.6 The data generated in VAPA on VAPA servers shall be deleted by VAPA no later than 120 days after termination. The customer will no longer have access to his VAPA account after termination.
10. Naming of references
VAPA is granted the right to use the customer's company name and logos for its own purposes for internal and external corporate communication (PR / IR), on the Internet pages, in presentations, flyers or in online, print and radio media as well as in the context of external events. The customer may revoke this consent at any time with effect for the future.
11. Final provisions
11.1 Contracts between the Provider and the Customer shall be governed by the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods and any provisions referring to another legal system.
11.2 The place of performance is Cologne.
11.3 If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from contractual relationships between the customer and VAPA shall be Cologne.
11.4 Should one or more provisions of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions and of the contract as a whole. The ineffective provision shall be replaced by an effective one by which the intended legal and economic success can be achieved as far as possible. The same shall apply to the filling of a gap.
11.5 These General Terms and Conditions were originally written in German. The German version shall always be authoritative for the interpretation of the provisions, even in the event of a translation into other languages.
VAPA GmbH Im MediaPark 5
50670 Cologne, Germany
Phone: +49 (0) 221 9999 2727
Email: hello@vapa.ai
