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.
Furthermore, the provider may be required by law or contract 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 appropriate account of the user's interests in their 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 receipt of the change notification, and the provider has expressly 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 duly terminate the relevant contract with a notice period of one month, but at the latest effective from the announced date of the new prices coming into effect (cf. section 13.1 of these T&Cs).
The User is only entitled to set off claims against the Provider's remuneration claims if its counterclaim is undisputed or legally established. The same applies to the assertion of rights of retention, provided that the counterclaim must also arise from the same contractual relationship.

§ 8 Performance Deficiencies, Force Majeure

The assertion of rights or claims due to delay requires the user to have first set a reasonable grace period for the provider without success, unless this would be unreasonable for the user, considering 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 law, 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 for which the user is responsible, e.g., non-timely fulfillment of user obligations or insufficient availability of user-side IT facilities with associated interfaces.
Exemption from the obligation to perform applies for the duration of the disability plus a reasonable grace period. If the disability lasts longer than two months, both parties shall be entitled to terminate the contract with regard to the affected part of the performance after a reasonable period for remedy has expired. Claims for damages or reimbursement of expenses against the provider shall not exist in such cases.
The parties shall inform each other immediately upon becoming aware of the occurrence of a force majeure event or any other circumstances mentioned in this clause 8.2 of these GTC. Should written notification not be possible initially due to the circumstances, the respective informing party undertakes to provide written notification subsequently.

§ 9 CLAIMS FOR DEFECTS

The user shall notify the provider of any defects immediately in text form to the support email address published by the provider, shall reasonably assist the provider in the analysis and rectification of defects, and shall grant immediate access to documents that provide further details about the occurrence of the defect. Additional services that arise as a result of culpably incorrect or incomplete information provided by the user or due to delays in the analysis or rectification of defects for which the user is responsible shall be borne by the user.
The user acknowledges that their ability to use the service depends significantly on the user settings they have selected themselves. Therefore, only reproducible defects can be recognized as such within the scope of warranty claims.
The provider's measures to remedy or mitigate damage do not constitute an acknowledgment of defect. By negotiating the complaint of the service, the provider does not waive the objection that the notice of defect 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 any (additional) expenses incurred for defect diagnosis and elimination.
Claims for defects are excluded if the user, either themselves or through third parties without prior authorization from the provider, modifies functionalities of the service or uses the service in a manner not intended or in an operating environment other than the intended one, including user errors, failure to comply with operating instructions, incorrect or missing processing data, unless the provider is responsible for this. This also does not apply if the user proves that occurring defects are in no way related to such circumstances. If the error analysis is significantly complicated by such circumstances, the customer shall bear any resulting additional costs.
The provider shall remedy defects for which the provider is responsible within a reasonable time, at the provider's discretion, by repair or replacement (together: subsequent performance). Subsequent performance may also consist of the provider enabling the user to implement a workaround, either temporarily or permanently, to the extent that this is reasonable for the user, in order to eliminate the defect. If subsequent performance finally fails, the user may terminate the contract or reduce the contractual remuneration if the statutory requirements are met. Claims for damages and reimbursement of expenses are governed by Section 10 of these General Terms and Conditions.
In the event of an infringement of third-party property rights attributable to the provider (defects in title), 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 redevelop 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. Claims for damages and reimbursement of expenses are governed by Section 10 of these General Terms and Conditions.

§ 10 Liability for Damages and Reimbursement of Expenses

The provider shall be liable, for whatever legal reason, only for intent, gross negligence, as well as negligent breach of essential contractual obligations or obligations, the fulfillment of which is essential for the performance of the contract and on whose compliance the customer may regularly rely (so-called cardinal obligations).
In cases of simple negligence, the provider's liability is limited to the compensation of foreseeable, contract-typical damage.
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 clauses 10.1, 10.2, and 10.3 of these General Terms and Conditions do not apply to damages resulting from injury to life, limb, or health, for claims under the Product Liability Act, or other mandatory legal provisions, if and to the extent the provider has assumed a warranty for quality.
The provider's strict liability for defects existing at the time of contract conclusion (§ 536a (1) BGB) is excluded.
Data communication over the internet cannot be guaranteed to be error-free and/or continuously available according to the current state of technology. The provider is not liable for disruptions within the network that are not their fault.
To the extent that the provider makes services available to the user free of charge, the provider shall only be liable for intent and gross negligence. This applies in particular to free access tools (see Section 2.9 of these Terms and Conditions) as well as in cases where the provider exceptionally sets up a free account for the user for the service.
The provider's liability does not extend to impairments of the contractual use of the services provided by the provider that were caused by improper or faulty use by the user. The provider is not liable for disruptions within the network for which the provider is not at fault.
The provider is not liable for the loss of data or programs to the extent that such loss could have been avoided by the user's reasonable data backup measures, which is particularly the case if the user has failed to regularly and properly perform data backups within their area of responsibility, thereby ensuring that lost data can be restored with reasonable effort.
Claims for damages become time-barred within one year of the user's knowledge or grossly negligent ignorance of the circumstances giving rise to the claim. This does not apply in cases of wilful intent, gross negligence, damages from injury to life, body or health, as well as claims under the Product Liability Act or other mandatory legal provisions. Insofar as these apply, the statutory limitation periods apply.
To the extent that the provider's liability is excluded or limited under the contract and/or these T&Cs, this also applies to the liability of its legal representatives, employees, and vicarious agents and/or shall be guaranteed to be available at all times. The provider shall not be liable for disruptions within the network that are not attributable to the provider.

§ 11 Data Protection, Information Security

Both parties undertake to comply with all applicable statutory data protection provisions. With the service, the provider makes the technical prerequisites for data processing available to the user.
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 data protection information, which is available on the provider's website under Data Protection, and which the user is asked to acknowledge and agree to when submitting their declaration of contract.
The Internet is used as a transmission medium for service delivery. Due to its public accessibility and the possibility of unauthorized third parties influencing content, this involves risks, such as unauthorized access to data during transmission. Additional security measures, such as firewalls, cannot offer absolute protection against misuse, loss, theft, or unlawful modification of data, nor against attacks that lead to the unavailability of services. The user accepts these risks; no claims can be made against the provider resulting from the realization of any of these risks, unless the provider is responsible for the circumstances.
The provider is entitled 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 undertake to treat all information concerning the business operations of the other party which comes to their knowledge during the performance of this agreement, in particular trade and operational secrets („Confidential Information“), with the strictest confidentiality, even beyond the term of this agreement, not to use it for any purpose other than the performance of this agreement, and not to disclose it to third parties, with the exception of third parties who may be legitimately involved in the performance of this agreement, to whom the parties shall impose corresponding confidentiality obligations. This shall apply regardless of whether such Confidential Information has been designated as „confidential“ or „secret“ or in a similar way as requiring confidentiality. The duty of confidentiality shall not apply to information which (a) was already known or generally accessible to the receiving party prior to disclosure by the disclosing party, or (b) subsequently becomes known or generally accessible without breach of a confidentiality obligation by the receiving party, or (c) has been demonstrably developed independently by the receiving party without knowledge of the information disclosed or made known to it under this agreement, or (d) for which there is a statutory or officially ordered disclosure obligation.
The provider is entitled to name the user as a reference customer on its website and in other media or marketing materials, and to link to the user's website. For these purposes, the provider may also use the user's company logo or trademark under a revocable, non-exclusive right of use.

§ 13 CONTRACT TERM, TERMINATION

Unless otherwise agreed, the underlying contract is concluded for an indefinite period and can 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 the agreement without notice for good cause remains unaffected. Good cause exists in particular if the respective other party persistently breaches essential contractual obligations (on the user's side, especially those according to section 5 of these General Terms and Conditions) and does not remedy the breach within a reasonable grace period despite a warning with a reasonable notice period, or if the other party experiences a significant deterioration or risk to its assets. Furthermore, the provider is entitled to terminate the agreement without notice if the user is in default of payment for two or more due invoices.
Terminations must be in writing and signed by hand. Terminations by email expressly do not meet this written form requirement.
The provider can block free accounts at any time and/or make further use of the service dependent on payment of a fee.
Upon termination of the underlying agreement, for whatever reason, the user shall be obligated to 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

The transfer of the contract concluded between the parties or individual rights or obligations arising from it by the user to third parties requires the prior written consent of the provider for its effectiveness. Section 354a of the German Commercial Code (HGB) remains unaffected.
The performance and legal relationship between the parties shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
The place of performance and the exclusive place of 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 shall be entitled to take legal action against 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.