Terms and Conditions

As of: December 2023

Channel Pilot Pro Solutions GmbH, Lilienstraße 5-9, Semperhaus C, 20095 Hamburg („Provider“) offers a web-based multichannel online placement service („Service“) via its website www.channelpilot.com. The Provider operates the Service and makes it available to its customers („Users“) as a cloud solution (Software as a Service – SaaS).
The provider and the user are hereinafter also referred to individually as „party” or collectively as „parties.“.

§ 1 Scope

Unless otherwise agreed in writing between the parties, these Terms and Conditions in their current version shall apply exclusively to the use of the service and the conclusion of contracts for the use of the service, including the electronic ordering option provided on the provider's website, as well as for all other deliveries, services, and offers by the provider. The user's general terms and conditions of business shall not apply, unless the provider agrees to them in writing. The activation of the service or the execution of any other delivery or service shall not be considered consent.
The provider's offers and these terms and conditions shall only apply to entrepreneurs as defined in § 14 of the German Civil Code (BGB), legal entities under public law, special funds under public law, and other institutional customers who are not acting for private purposes (and thus not as consumers as defined in § 13 of the German Civil Code (BGB)) when placing an order. They shall also apply to all future transactions with the user arising from an ongoing business relationship.
The provider may change these Terms and Conditions at any time. Changes to these Terms and Conditions will only become part of the contract concluded with the user if the provider informs the user of the changes to these Terms and Conditions in text form, with the changes highlighted typographically. The change is considered approved by the user if they do not object in text form within six weeks of receiving the change notification, and if and to the extent that the provider has expressly informed the user of this consequence in the change notification.
For the use of the website www.channelpilot.com, the provider's Website Terms of Use shall otherwise apply.

§ 2 PROVIDER'S SERVICES

The provider operates the web-based service and makes it available to the user as a cloud-based solution (SaaS). Details regarding the service’s features are set forth either in a specific quote prepared by the provider for the user or in the relevant technical specifications published by the provider on its website.
The provider makes the service available to the user as a technical platform for placing their online shop offers on online channels. The customer receives the technical capability and authorization to access the platform and use its functionalities via telecommunications and their own hardware.
For technical reasons, it is impossible for the provider to guarantee uninterrupted operation of the service at all times. Rather, disruptions/limitations in the actual usability of the service („operational disruptions and interruptions“) may occur for various reasons, particularly due to the following circumstances: (a) planned maintenance work, (b) unplanned operational interruptions that are urgently necessary for troubleshooting or damage prevention, (c) disruptions or delays due to the failure or overload of internet or telecommunications lines, as well as (d) due to circumstances of force majeure or other unforeseen circumstances beyond the provider's control (see clause 8.2 of these GTC). The provider endeavors to keep such operational disruptions and interruptions to a minimum.
The operational disruptions and interruptions referred to in Section 2.3 of these Terms and Conditions do not constitute a breach of performance or any other breach of contract on the part of the Provider, provided that such disruptions and interruptions are minor and temporary.
When tracking and analyzing tracking data, technical inaccuracies and discrepancies may occur due to current technological limitations (e.g., due to different methods of counting clicks with which an end user accesses the user’s shop via the service and/or online channels). To the extent that tracking data is relevant to the performance of the contract between the parties (e.g., transaction-based billing), the tracking data determined by the provider shall prevail.
The provider may engage third parties (subcontractors) to perform the contractual services
The Provider is under no obligation to expand the Service to include new features that go beyond the scope of services agreed upon at the time the contract was concluded. Notwithstanding the foregoing, the Provider reserves the right to make modifications at any time to expand or update features, without this giving rise to any entitlement or implying any such entitlement. The Provider shall inform the User of such modifications with reasonable advance notice prior to their implementation. In addition, the Provider shall inform the User of any optional add-on modules that may be developed and offered for a separate fee.
The user is exclusively responsible for the content of the offers submitted via the service or made available for retrieval through online channels and accordingly placed, as well as for the underlying data. The provider also assumes no responsibility for the content of orders from end customers that are possibly transmitted back to the user's online shop via the service and generated through an online channel. The provider merely provides the technical prerequisites for the transmission/retrieval of such data, but is not obligated to examine their content from a factual, legal, or any other perspective, nor to check transmitted/retrieved data for accuracy, completeness, integrity, or authenticity. Beyond the functional scope of the service – the technical prerequisite for the transmission/retrieval of data – the provider cannot guarantee the successful placement of the user's offers on an online channel.
The selection of online channels accessible via the service is at the sole discretion of the provider, taking due account of the legitimate interests of the user community. However, special requests from individual users cannot be accommodated. Online channels may be added or removed at any time. The provider will inform the user of any significant changes regarding the online channels accessible via the service and/or their number.
Where agreed upon in individual cases, the Provider shall provide the User, in addition to the Service, with certain tools for technical integration with the Service (e.g., plug-ins for the User’s online store, apps, etc.), free of charge where applicable.

§ 3 Conclusion of Contract and Registration as a User

The provider enters into contracts only with individuals who have full legal capacity and are at least 18 years of age.
A contract for the use of the service is concluded either through an individual offer from the provider and the user’s acceptance of that offer. Alternatively, the user may use the online ordering option on the provider’s website. When using the online ordering option, the user submits a binding offer to enter into a contract by submitting a fully completed order form—in which the user must also specify the desired rate for using the service—which the provider may accept within two weeks. However, a contract is not concluded until the provider confirms the registration in writing (letter, fax, email) or activates the service for the user. There is no general right to use the service; the provider expressly reserves the right to reject orders.
When using the online ordering option, the following also applies:
(a) Before submitting the electronic order form, the user is shown a summary of their order for the service and is given the opportunity to review, update, or correct their product selection and login information.
b) The content of the order, these terms and conditions, and the provider's privacy policy can be accessed and saved or printed when submitting the order. After submitting the order, the order content is no longer available online. The terms and conditions and the privacy policy can be accessed, saved, and printed at any time in their current version via the provider's website.
c) Upon receipt of the order, the provider will send the user an automated order confirmation. However, this does not constitute an order confirmation in the sense of an acceptance of the offer to conclude a contract, but merely a confirmation of receipt of the order.
(d) The following languages are available for the conclusion of the contract: German, English, French, and Spanish, as well as any other languages in which the provider makes its website available, as indicated by the corresponding menu items or icons.
Regardless of the ordering method chosen (offline or online), the user must register for online access to the service, which is offered as a cloud solution, in order to use the service. The user is required to complete the form provided by the provider for this purpose fully and truthfully.
By submitting its declaration of contract conclusion, the user acknowledges these Terms and Conditions as well as the provider's data protection information and assures that the data transmitted by them are correct and complete. The user must promptly inform the provider of any subsequent changes to their details.
The user is obligated to keep their password chosen for accessing the service (password and email address together, „User Credentials“) confidential, store it separately, and not disclose it to third parties. If the user becomes aware that third parties have gained knowledge of or are using their password or User Credentials, they must inform the provider immediately in text form. The user is responsible for all actions by third parties, particularly orders by third parties, that are carried out using their User Credentials, if and to the extent such actions are attributable to them through the rules of representation or principles of apparent authority.

§ 4 RIGHTS OF USE

The Provider grants the registered user a simple, non-transferable, non-exclusive, and non-sublicensable right, limited to the term of the contract, to use the Service for their own business purposes in connection with the placement of online store listings. The user does not receive any rights beyond this, in particular to the software applications underlying the service or to any operating software held by the Provider.
Any use of the Service beyond that described in Section 4.1 of these Terms and Conditions is prohibited. In particular, the user is prohibited from unauthorized reproduction or modification of the Service or parts thereof, or of the software underlying the Service; from decompiling the source code or otherwise making it readableor make it usable, to make the software underlying the Service publicly available, to rent it out, or to otherwise transfer or exploit it to third parties, or to use it or allow it to be used for the purposes of third parties. The statutory minimum rights within the meaning of Sections 69d and 69e of the German Copyright Act (UrhG) remain unaffected.
If the user negligently allows unauthorized third parties to use the service or software owned by the provider, the provider reserves the right to seek damages. In the event of unauthorized transfer of use to third parties, the user shall, upon request, immediately provide the provider with all information necessary to assert claims against the third party.

§ 5 USER OBLIGATIONS

The user is responsible for connecting to the necessary telecommunications infrastructure and, through it, to the service, as well as for providing the necessary interfaces to their own applications.
It is the user’s responsibility to select the service settings in such a way as to ensure uninterrupted use of the service. The user is obligated to immediately notify the provider of any changes occurring within their area if such changes are likely to impair the provision of services or the security of the service.
The user must agree to the privacy policy in order for a contract to be formed. The user is obligated to ensure, within their area of organization and responsibility, that sufficient and state-of-the-art measures are in place to safeguard data and information security—in particular, regular data backups—as well as to implement the necessary security precautions regarding their connection to the service (e.g., firewalls, use of software suitable for Internet access that ensures secure data transmission) and to maintain them for the duration of the contract concluded with the provider.
The user must protect user IDs assigned to them and their employees from unauthorized third-party access and may not disclose them to unauthorized third parties. In the event of the loss of access data, and in cases where there is a risk of misuse or unauthorized use of access data by the user (e.g., due to a change in employee or organization), the user is obligated to inform the provider immediately in writing so that the provider can, if necessary, arrange for the service access to be blocked (see Section 6 of these GTC). The user is also obligated to cooperate in the investigation of unauthorized third-party access to the extent that such cooperation is required from the user.
The user is prohibited from taking any action that jeopardizes or disrupts the operation of the service. The user is also obligated not to use the service unlawfully or abusively, or to allow others to do so, in particular not for the purpose of conducting business involving items that violate legal provisions. Excluded from using the Service are, in particular, providers of Internet content (e.g., product/download offers, links to such offers) with legally prohibited content, such as radical, racist, pornographic, violence-glorifying, offensive, or otherwise impermissible content. Also excluded from using the service are users with demonstrably unethical business practices.
Furthermore, the user must ensure that all applicable laws and regulations (in particular data protection and consumer protection laws) as well as industrial property rights, copyrights, and other third-party rights are observed when submitting offers via the service. If the user's offer is directed at customers outside of Germany, all laws and regulations and third-party rights in the respective destination countries must be observed.
The user must be clearly identifiable as the party posting the offer and thus as the „seller.“ The user is required to comply with all legal requirements on their own website or in the online store they operate, including providing complete and accurate seller identification and adhering to applicable data protection and consumer protection regulations.
The user shall indemnify the provider against all actual and alleged claims by third parties, including legal costs, arising from the user’s acts or omissions, in particular claims based on unlawful or abusive use of the service, non-compliance with applicable regulations, or a violation of third-party rights by the user or with the user’s consent. If the user becomes aware or should become aware that such a violation is imminent, the user is obligated to inform the provider immediately.
The user shall bear any additional costs caused by a failure to perform, or by the untimely, incomplete, or improper performance of their user obligations, if they are responsible for such failure or are liable for it for other reasons.

§ 6 VIOLATION OF USER OBLIGATIONS, SUSPENSION OF THE SERVICE

The Provider may suspend the User’s access to the Service, in whole or in part, at any time, or delete the User’s account if (a) the User violates any user obligations relating to the safeguarding of data and information security, (b) there is a risk of damage to or impairment of the Provider’s systems, data, or services, or the systems or data of another customer of the Provider, or a risk of harm to the general public, (c) the offers or data transmitted by the user via the Service or the business transactions processed via the Service violate applicable laws or the rights of third parties, or (d) circumstances exist that entitle the Provider to terminate the agreement without notice. Suspension is also possible if the user (e) is in arrears with more than two payments, provided that such suspension or termination shall only take place after a prior warning with a reasonable notice period of at least fourteen days and the expiration of said period without response.
If the suspension is due to a breach of contract by the user, access will not be restored until the breach has been permanently remedied or the risk of recurrence has been eliminated by means of a cease-and-desist declaration subject to a penalty clause.
The provider is not obligated to restore access if doing so would be unreasonable, for example, if the reason for the suspension also entitles the provider to terminate this contract immediately and without notice, and the provider terminates this contract immediately and without notice.
A block/deletion based on the user's breach of contract does not entitle the user to suspend payment or assert claims for damages against the provider.
If the provider exceptionally sets up a free account for a user, the provider may block this account at any time without stating reasons and/or make further use of the service dependent on the payment of remuneration.
In addition, the provider may be required for legal or contractual reasons to remove online channels from the service.

§ 7 COMPENSATION

The remuneration to be paid by the user for the use of the service shall be determined by the provider's price list valid at the time of conclusion of the contract, unless otherwise agreed in writing.
All prices are net prices and are subject to the applicable statutory value-added tax (currently 19%), where applicable. If the user is not based in Germany, and if special taxes, customs duties, or other charges, these shall be borne by the user or, if the provider is liable for such charges under applicable regulations, reimbursed by the user to the provider.
Invoices are due for payment within fourteen days of the invoice date, without deduction.
Within the scope of ongoing contracts, the provider is entitled to adjust the remuneration once a year at their reasonable discretion, taking into due consideration the user's interests regarding cost development. The provider will inform the user of such price adjustments in text form. The change is considered accepted by the user if they do not object in text form within six weeks of receiving the change notification, and the provider has explicitly informed the user of this consequence in the change notification. If the user objects to the price adjustment within this period, both parties are entitled to terminate the relevant contract with one month's notice, but no later than with effect from the announced date of the new prices coming into force (cf. Section 13.1 of these GTC).
The user is only entitled to offset claims against the provider's payment claims if their counterclaim is undisputed or legally established. The same applies to the assertion of retention rights, provided that the counterclaim must also be based on the same contractual relationship.

§ 8 PERFORMANCE IMPEDIMENTS, FORCE MAJEURE

The assertion of rights or claims due to default requires the user to have first set a reasonable grace period for the provider without success, unless this would be unreasonable for the user, taking into account the circumstances of the individual case.
The provider is released from its performance obligations if non-performance is due to circumstances of force majeure or other unforeseen circumstances for which the provider is not responsible (e.g., war, strike, lockout, riots, expropriations, changes in laws, official orders, storms, floods, natural disasters, water ingress, power outages, internet system failures, interruption or destruction of data-carrying or telecommunications lines, unlawful activities of third parties on the internet, or sabotage by malware). The release from performance obligations also applies to delays due to circumstances within the user's responsibility, e.g., non-timely fulfillment of user obligations or insufficient availability of user-side IT facilities with associated interfaces.
Exemption from the performance obligation applies for the duration of the disability plus a reasonable ramp-up period. If the disability lasts longer than two months, both parties are entitled to terminate the contract with regard to the affected part of the performance after an appropriate period of grace has expired. Claims for damages or reimbursement of expenses against the provider do not exist in such cases.
The parties shall notify each other immediately upon becoming aware of the occurrence of a force majeure event or any other circumstances referred to in Section 8.2 of these Terms and Conditions. If written notification is not initially possible due to the circumstances, the notifying party undertakes to provide written notification at a later date.

§ 9 Warranty Claims

The user shall immediately notify the provider in writing of any defects to the support email address published by the provider, appropriately support the provider in analyzing and rectifying defects, and immediately grant access to documents that provide further details on the circumstances of the defect's occurrence. Additional services arising from faultily incorrect or incomplete information provided by the user or from delays in defect analysis or rectification for which the user is responsible shall be borne by the user.
The user acknowledges that their ability to use the service is significantly dependent on the user settings they themselves have chosen. Therefore, only reproducible defects can be recognized as such within the scope of defect claims.
The provider's measures to remedy or mitigate damages shall not be considered an acknowledgment of defects. By negotiating the complaint about the service, the provider does not waive the objection that the notification of defects was not timely, factually unfounded, or otherwise insufficient.
If the user wrongly claims the existence of a defect for reasons not attributable to the provider, the provider may charge the user for (additional) expenses incurred for troubleshooting and remediation.
Claims for defects are excluded if the user, either directly or through third parties without prior authorization from the provider, modifies the service’s functionality or uses the service in a manner other than that intended or in an operating environment other than that intended, including operational errors on the part of the user, failure to follow application instructions, or incorrect or missing processing data, unless the provider is responsible for such issues. This also does not apply if the user proves that any defects that arise are unrelated to such circumstances. If fault analysis is significantly impeded by such circumstances, the customer shall bear any resulting additional costs.
The provider shall remedy defects attributable to the provider within a reasonable time at its own discretion through repair or replacement (collectively: subsequent performance). Subsequent performance may also consist in the provider enabling the user to implement a workaround to eliminate the defect, either temporarily or, if reasonable for the user, permanently. If subsequent performance fails definitively, the user may terminate the contract or reduce the contractual remuneration if the legal requirements are met. Claims for damages and reimbursement of expenses are subject to Section 10 of these General Terms and Conditions.
In the event of an infringement of third-party property rights (defects in title) for which the provider is responsible, the provider may, at its own discretion, either acquire a usage right from the third party that is sufficient for the agreed use of the service and grant it to the user, or modify the service while maintaining the contractually agreed usage possibilities or recreate the affected functionality(ies) so that no third-party property rights are infringed. If this is not possible or unreasonable for the provider, the statutory claims shall apply to the user. For claims for damages and reimbursement of expenses, Section 10 of these GTC shall apply.

§ 10 LIABILITY FOR DAMAGES AND REIMBURSEMENT OF EXPENSES

The Provider shall be liable, regardless of the legal basis, only for willful misconduct, gross negligence, and the negligent breach of material contractual obligations or obligations whose fulfillment is essential for the performance of the contract and on whose fulfillment the Customer may reasonably rely (so-called cardinal obligations).
In cases of simple negligence, the provider's liability is limited to the replacement of foreseeable, contract-typical damages.
In addition, the Provider’s liability is limited to 25% of the net annual fee payable by the User under the contract per claim and to the total net annual fee per contract year.
The limitations of liability according to numbers 10.1, 10.2, and 10.3 of these Terms and Conditions do not apply to damages resulting from injury to life, body, or health, for claims under the Product Liability Act or other mandatory legal provisions, if and to the extent that the provider has assumed a quality guarantee.
The landlord's strict liability for defects that already existed at the time of contract conclusion (§ 536a(1) of the German Civil Code) is excluded.
Given the current state of technology, error-free data communication over the Internet and/or its availability at all times cannot be guaranteed. The provider is not liable for disruptions within the network that are not attributable to the provider.
To the extent that the Provider makes services available to the User free of charge, the Provider shall be liable only for willful misconduct and gross negligence. This applies in particular to service access tools provided free of charge (see Section 2.9 of these Terms and Conditions) as well as in the event that the Provider, as an exception, sets up a free account for the service for a user.
The provider's liability does not extend to impairments of the contractual use of the services provided by the provider that are caused by improper or faulty use by the user. The provider is not liable for disruptions within the network that are not attributable to the provider.
The provider shall not be liable for the loss of data or programs to the extent that such loss could have been avoided by the user's appropriate data backup measures. This is particularly the case if the user has failed to perform data backups within their area of responsibility regularly and properly, thereby ensuring that lost data can be restored with reasonable effort.
Claims for damages are barred by the statute of limitations one year after the user becomes aware of, or through gross negligence fails to become aware of, the circumstances giving rise to the claim. This does not apply in cases of intent, gross negligence, damages resulting from injury to life, limb, or health, or claims under the Product Liability Act or other mandatory statutory provisions. In such cases, the statutory limitation periods apply.
To the extent that the provider's liability is excluded or limited under the contract and/or these GTC, this also applies to the liability of its legal representatives, employees, and vicarious agents and/or must be guaranteed to be available at all times. The provider is not liable for disruptions within the network for which the provider is not responsible.

§ 11 Data Protection, Information Security

Both parties agree to comply with all applicable data protection laws. Through the Service, the Provider provides the User with the technical infrastructure necessary for data processing.
The provider implements, or ensures that its subcontractors (e.g., data center operators) implement, technical and organizational measures (TOMs) that correspond to the current state of the art, in the interest of data protection and data security.
Further information on data protection can be found in the provider’s privacy policy, which is available on the provider’s website under “Privacy Policy,” and which users are required to acknowledge and agree to when submitting their declaration of acceptance of the contract.
The Internet is used as the transmission medium for the provision of services. Due to its public nature and the possibility of unauthorized third parties influencing content, this entails certain risks, such as the unauthorized access to data during transmission. Even additional security measures, such as firewalls, cannot provide absolute protection against misuse, loss, theft, or unauthorized modification of data, nor against attacks that result in the unavailability of services. The user accepts these risks; no claims may be asserted against the provider should any of these risks materialize, unless the provider is responsible for the circumstances in question.
The provider is authorized to merge data generated in the course of providing the service for a user, including data from online shop users, with other information and to process and use it in anonymized form for its own purposes.

§ 12 CONFIDENTIALITY, PUBLICATIONS

Both parties agree to treat all information regarding the other party’s business operations that comes to their knowledge during the performance of this Agreement—in particular, trade and business secrets („Confidential Information“)— to treat such information as strictly confidential even beyond the term of the Agreement, not to use it for any purpose other than the performance of the Agreement, and not to disclose it to third parties, with the exception of third parties who may be lawfully engaged for the performance of the Agreement and upon whom the parties impose corresponding confidentiality obligations. This applies regardless of whether such Confidential Information has been designated as „confidential,“ „secret,“ or similarly marked as requiring confidentiality. The confidentiality obligation does not apply to information that (a) was already known to the receiving party or generally available prior to disclosure by the disclosing party, or (b) subsequently becomes known to the receiving party or generally available without a breach of the receiving party’s confidentiality obligation, or (c) was demonstrably developed by the receiving party independently of the information disclosed to it under the Agreement or otherwise made known to it, or (d) is subject to a statutory or regulatory obligation of disclosure.
The Provider is entitled to name the User as a reference customer on its website and in other media or marketing materials, to link to the User’s website, and, for these purposes, to use the User’s company logo or trademark under a revocable, non-exclusive license.

§ 13 CONTRACT DURATION, TERMINATION

Unless otherwise agreed, the underlying contract is entered into for an indefinite term and may be terminated by either party at any time with one month's notice to the end of the month.
The right of both parties to terminate without notice for good cause remains unaffected. Good cause exists in particular if the other party persistently breaches essential contractual obligations (on the user's side, especially those according to section 5 of these T&Cs) and does not remedy the breach within a reasonable grace period despite a warning, or if a significant deterioration or endangerment of the other party's financial situation occurs. Furthermore, the provider is entitled to terminate without notice if the user is in default of payment for two or more due invoices.
Notices of termination must be in writing and signed by hand. Notices of termination sent by email do not meet this written requirement.
The provider may suspend free accounts at any time and/or make continued use of the service contingent upon payment of a fee.
Upon termination of the underlying contract, for whatever reason, the User shall immediately cease using the Service, return all materials provided by the Provider in connection with the Service to the Provider, and delete all corresponding data stored by the User, unless such data is subject to statutory retention or archiving obligations.

§ 14 FINAL PROVISIONS

Any transfer by the user to third parties of the contract entered into between the parties, or of individual rights or obligations arising therefrom, requires the prior written consent of the Provider to be valid. Section 354a of the German Commercial Code (HGB) remains unaffected.
The legal and contractual relationship between the parties shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
Place of performance and exclusive jurisdiction for all disputes arising from and/or in connection with the performance and legal relationship between the parties shall be Hamburg. However, the provider is entitled to sue the user before any other competent court.
Amendments or additions to the contract existing between the parties and/or these GTC, as well as ancillary agreements, shall be agreed upon by the parties in writing by manual signature for their validity. This also applies to an amendment of this written form requirement.
If individual provisions of the contract concluded between the parties or of these GTC are or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The provision that is wholly or partially invalid shall be replaced by that legally valid provision which economically comes closest to the economic objective of the invalid provision. The same applies in the event of an omission.