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The State of Performance Max: New Insights into the Power & Pitfalls of PMax
1.1 These General Terms and Conditions (hereinafter “GTC”) apply to all Contracts (as defined in clause 1.4) between Smarter Ecommerce GmbH, FN 298859z (hereinafter “smec”), and its clients (hereinafter “Client”), regardless of how such Contracts are concluded.
1.2 smec is a service company that serves national and international clients in the fields of e-commerce and online marketing through the provision of software (software-as-a-service solution) and comparable tools, consulting activities and/or paid provision of expertise.
1.3 Conclusion of contract
Unless agreed otherwise in a separate written agreement, the contract between smec and the Client for the use of products and services specified in the individual agreement is concluded as follows: Based on the individual agreement or performance agreement (scope) the Client (supported by smec as needed) commissions smec with the services specified therein. A possibly used scope defines the performance description of the agreed services. smec shall draw up and submit a quotation to the Client for the agreed services. The contract is concluded when the Client signs and returns the quotation.
1.4 A “Contract” comprises these GTC, any Software-specific Terms and Conditions (as applicable) and the Scope Document.
1.5 Unless expressly agreed in writing, these GTC apply to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.6 Within 10 working days of conclusion of the Contract with the Client as set out in clause 1.3., smec may unilaterally withdraw from and/or terminate the Contract for its convenience, without liability to the Client.
2.1 smec will provide consultation and support services to the Client in relation to its online marketing activities in accordance with the Scope. In particular, this consultation and support will be provided through market analysis, conceptual design of advertising campaigns, ongoing assistance therewith and/or provision of software.
2.2 smec makes no warranty regarding the achievement of any predefined campaign objectives or any associated increase in the Client’s revenue. The Client acknowledges smec is under no obligation to achieve specific parameters used to determine the success of a campaign, such as click rates, conversion rates, costs per click, and/or other determinable or measurable parameters with regard to the Client’s revenue or sales numbers.
2.3 The Client acknowledges that the success of an online marketing campaign is dependent on many factors that cannot be controlled or influenced by smec or the Client, regardless of the measures implemented or the advertising budget used. In particular, these factors include supply and demand in the respective target market, availability of the advertised products, online trends and hype and market-relevant activities of competitors.
2.4 The Client’s perception of the success or failure of a campaign that was designed and/or managed by smec will not enable any conclusions to be drawn regarding defective performance or any other breach of contractual obligations. Such defectiveness or breach of contractual obligations can only apply if the campaign designed by smec based on the information provided by the Client was not suitable to achieve the campaign goals indicated by the Client and confirmed by smec even under favourable market conditions.
2.5 Insofar as sample key figures are presented in the context of advertising the services of smec, these figures only illustrate possible market opportunities from the use of services or campaigns provided by smec, based on prior experience. The potentials for improvement in conversion rates, costs per click or other relevant values presented in this context are approximate values that, based on an initial assessment of the market environment of the Client, could be achieved through the use of smec services based on prior experience. However, these improvements do not at any time constitute agreed contractual content or an achievement owed by smec.
3.1 Subject always to the rest of this clause 3 smec,
3.1.1 will make all software provided by smec as part of the Services (“Software”) available for use by the Client 24 hours a day, 365 days a year; and
3.1.2 warrants 99% availability of its Software measured over the calendar year.
3.2 smec may interrupt the provision of its Services and the availability of the Software in order to carry out:
3.2.1 routine, necessary maintenance works (provided that such works will be communicated to the Client in advance where possible and such works will not affect the availability quota); and
3.2.2 emergency necessary maintenance works (provided that such works will be communicated to the Client in advance where possible). It is acknowledged by the Client that such works may affect the availability quota and will not count towards the availability quota (even where the Client was not notified in advance).
3.3 The calculation of availability will not take into account, and smec is not responsible for internet/network-related and similar downtime resulting from hardware and software being down due to technical or other problems outside the smec’s control (including, without limitation, force majeure, events, or any fault of Google or other third parties).
4.1 The Client will keep up to date the data and information that smec requires for the provision of the Services and will provide this data and information in a format that is suitable for smec’s processing. smec is not responsible for any damage or loss resulting from the delayed or inaccurate provision of data by smec.
4.2 If, when managing a campaign (e.g. Google Ads), smec is required to administer or use a media budget for the Client, the Client will provide the funds to be administered or used to smec in advance of expenditure by smec and in a timely manner. It is acknowledged by the Client that smec is under no obligation to use its own funds for the execution of a Client’s campaign. smec will have no liability to the Client for any damage, loss (including any loss of profit) or decrease in remuneration suffered by the Client to as a result of the Client’s failure to provide any agreed media budget to smec in a timely manner in advance.
4.3 The Client must provide all login data and passwords required by smec for the provision of the Services and, in the event of any changes, to such login data and passwords, immediately inform smec of the updated data in writing.
4.4 At the request of the Client, smec will return any of the Client’s login data and passwords to the Client. smec acknowledges that it has no right to retain such data following such request from the Client.
4.5 The Client must keep all login data and passwords necessary for its use of Software secure, not to share them with third parties. In the event of any loss, dissemination (whether intentional or unintentional not) of, or unauthorised access to, this data, the Client must immediately inform smec in writing. The Client will indemnify and hold harmless smec for all loss and damages incurred by smec resulting from the loss, dissemination of, or unauthorised access to, such login data.
4.6 If smec attends appointments (including, without limitation, conferences, workshops, review meetings) on-site at the Client’s premises, smec is entitled to charge the Client for as follows:
4.6.1 travel allowance for each smec employee attending the appointment per day. For the avoidance of doubt, this lump sum will include travel costs (by car, train and taxi) as well as other costs and expenses (like parking fees and daily allowances).
4.6.2 If arrival and departure by plane is reasonably necessary or hotel and/or other accommodation costs are reasonably necessary, both due to the long duration as well as due the timing of the appointment, these actual costs will be charged additionally to the Client without surcharge. smec will pay attention to choosing the cheapest and most efficient way for different connections and transport options. In the event of a postponement or cancellation of the appointment by the Client, the Client must reimburse smec for any non-refundable travel and subsistence costs and/or cancellation costs which are incurred by smec; and
4.6.3 time spent by smec employees travelling to on-site appointments on a per employee basis (such amounts to be charged separately at the applicable hourly rate or deducted from any agreed monthly quota).
4.7 The Client is solely responsible for paying any foreign currency charges incurred in connection with payments or other transactions, and such charges must in no circumstances be charged to smec.
4.8 The Client acknowledges that if Services are quoted at a per-employee daily or hourly rate, this information constitutes an estimate (to the best of smec’s knowledge) of the time and cost to be incurred for the result desired by the Client. If Services are agreed in the form of a lump sum, this includes all services described in detail in the Scope Document. If smec’s actual outlay or incurred costs exceeds the costs specified in an estimate or Scope Document, smec reserves the right to charge for any extra time or effort expended at the defined hourly rate.
5.1 smec undertakes to provide the Services in accordance with the Contract, but makes no warranty regarding the achievement of any outcome intended by the Client.
5.2 smec provides its Services both manually (as performed by smec’s employees) and automatically (via the Software). The fact of whether in an individual case an activity was performed manually or with automated assistance cannot be used to justify a conclusion that Services are defective or that there has been a breach of any contract by smec.
5.3 The Client acknowledges that smec’s campaigns (which may form part of the Services) always extend over several months. During this period, phases of active campaign operations (campaign initiation and updates) alternate with phases of fewer modifications (campaign observation and evaluation), and in some of these phases measures will neither be implemented by employees nor by the Software used. This irregularity is an essential part of a long-term advertising campaign and will not under any circumstances be considered defective provision of the Services, or any breach of contract by smec.
6.1 Unless otherwise provided for by a special agreement or by law, smec’s liability for contractual or statutory claims, damages, consequential damages or loss of profits is excluded, unless the Client proves intent or gross negligence against smec.
6.2 Liability for slight negligence on the part of smec is also excluded. In addition, liability for consequences or damages that could not be typically foreseen from the use of the services of smec is also excluded.
6.3 smec will not be liable for loss of data or damages resulting therefrom.
6.4 smec will not be liable in cases of damage to or loss of data belonging to the Client or other negative consequences and damages caused by malfunction of software that is used or provided where these cases were not caused by gross negligence or intent on the part of smec.
6.5 smec will not be liable for negative consequences and damage from cyberattacks, hacking or phishing attacks against smec or the Client. The same applies for negative consequences and damages that result from the theft during a cyberattack of software login data and/or passwords or other data for or used by smec and provided to smec by the Client.
6.6 smec is not liable for any translation errors in foreign language services (eg translations in foreign language campaigns using a third-party tool) and related adverse consequences and damages. If possible, smec will forward the translated version to the Client for approval in advance.
6.7 The Client undertakes to regularly, but at least on a weekly basis, create backup copies or have copies created of any data sent to smec in connection with the services of smec and/or to which smec is granted access. In the event of loss, failure to create backup copies will constitute a breach of the Client’s duty to mitigate damages.
6.8 If during the provision of services to the Client, smec is given the option to manually or automatically use, place or cause to be placed the advertising budget of the Client, smec will not be liable for financial disadvantages that result from malfunction of the software used. smec will only be liable for regularly checking that the tools used by smec for bid management are functioning correctly.
6.9 Any compensation for advertising costs paid out by the Client during advertising campaigns managed by smec and/or advertising costs administered by smec itself for third parties (e.g. Google Ads) is excluded, except in the case of deliberate misuse by smec.
6.10 If third-party content or links to third-party content are present in the software or other online services provided, smec is not liable for this content.
6.11 Compensation for the Client’s damages – excluding personal injury – is limited for each damage event to the insurance sum of the liability insurance of smec provided in the damage event. If the damage is not covered by the liability insurance, the damage compensation sum to be paid by smec for each damage event is limited to the amount of the annual payment rendered to smec by the Client, without consideration of the advertising costs that are administered.
6.12 If the Client is provided with clearly marked ALPHA and/or BETA functions for test use of the software delivered to them, any use is at the risk of the Client. The Client recognises that these functions are not fully technologically developed, may contain defects or errors and could cause damage to the Client’s system. In the event of use, smec will have no liability to the Client and provides no warranty regarding the Client’s use of such software.
6.13 The Client shall indemnify and hold smec harmless from all third-party claims asserted against smec due to an infringement of rights by advertising campaigns initiated by the Client in its Google Ads account or inaccurate, anti-competitive or illegal information contained therein. This indemnity also includes all reasonable costs, including costs for corresponding legal prosecution and defence incurred by smec due to this infringement of third-party rights by the Client.
7.1 The contractual relationship between smec and the Client is – unless otherwise agreed in writing – concluded for an indefinite period of time.
7.2 Unless otherwise agreed in writing, the fee to be paid by the Client is based on the currently valid price list. If smec provides any part of the Services on a daily, per person rate, the parties may agree an increased quota at any time by written agreement, subject always to such increase being no less than 0.5 person-days (and where one person day consists of 8 working hours directly assignable to the Client or the Client’s project). Any unused quota will be carried over to the following month and billed annually or upon termination of the Contract.
7.3 Unless otherwise agreed in writing, smec will invoice the Client for the fees in advance on a calendar monthly basis (each monthly billing cycle being from the first of the month to the last day of the month). If the first day of provision of the Services is not the first day of the month, the partial month will be calculated and charged on a pro-rata basis. Thereafter, smec will invoice in advance on a calendar monthly basis.
7.4 Payment for services agreed to be provided on a one-off basis or regularly (such as initial adjustments to the software during setup or account management), plus the applicable VAT, is payable monthly in advance within 10 days of the invoice date.
7.5 The invoices will be sent to the Client at the e-mail address deposited by the Client or provided in the individual agreement.
7.6 If the contractual relationship was concluded for an indefinite period of time, each of the contracting parties has the right to terminate the contractual relationship with one month’s notice to the end of the current billing cycle. The Client must send its notice of termination to [email protected], or it will not be considered to have been received.
7.7 If a contract was concluded between the parties for a set period of time, neither of the parties will be entitled to give ordinary notice of termination. A contractual relationship concluded for a set period of time will, upon expiry of the set period, automatically be renewed for a further set period of the same duration unless it is terminated by one of the contracting parties in writing in compliance with a notice period of one month to the end of the contract term.
7.8 Prohibition of compensation and assignment
The Client may only offset or assert a right of retention with legally determined or uncontested claims against smec. The Client can only assign receivables from this contract to third parties with written approval from smec.
8.1 All agreed prices and conditions will be adjusted by smec at the beginning of each calendar year, at the earliest after the first year of the contract period (maximum once a year), by the increase of the Consumer Price Index (CPI 2015) that has occurred in the last 12 months.
8.2 In addition, a price adjustment by smec is also permitted in case of an increase of other external factors, beyond smec’s control (such as an increase or new introduction of legally prescribed fees), during the contract period; in this case the price adjustment is made in the same proportion as the increase of the respective external factor.
8.3 The temporary omission of a price adjustment shall not constitute a waiver by smec of the annual price and conditions adjustment.
9.1 Prices and payment terms for the smec services used by the Client will be stipulated in individual agreements or product-specific terms and conditions.
9.2 All smec services that are not performed on a one-off basis share the feature that costs associated with the implementation of the software necessary for the performance of the service as well as with market observation and campaign organisation will not initially be reimbursed in full, but will be taken into account in the ongoing support costs.
9.3 smec is entitled, in the event of a qualified payment default by the Client, to suspend the provision of its Services and/or the functionality of the Software until all outstanding and due payments have been made in full by the Client. For the purpose of this clause, a “qualified payment default” is where payments (or parts thereof) have not been made despite a written reminder from smec, in which smec provided a subsequent and reasonable period for remedy (such period to be determined in smec’s absolute discretion).
9.4 smec’s right to suspend its own service and/or the functionality of the software used or provided will not entitle the Client to refuse payment of current claims or (even only) withhold partial amounts. A justified pause by smec will not constitute grounds for the Client to end the contractual relationship with smec early for good cause.
9.5 In the event of late payment in the case of a Contract for payments in instalments, smec will be entitled at any time to demand, and the Client must make immediate payment of all outstanding amounts to smec.
9.6 If the Client is in default of an agreed (partial) payment, smec is entitled to charge default interest in the amount of 9.2 percentage points above the base interest rate per year. The assertion of additional default damages or reminder charges and the costs for corresponding legal prosecution will remain unaffected by this. In the event of default of payment, including for partial payments, all possible discount agreements become void. In the event of default of payment, pre-established instalment deadlines will also cease to apply. If the Client is in qualified payment default (9.3), smec is also entitled to declare immediate dissolution of the contractual relationship with good cause.
10.1 smec explicitly reserves all rights to the content of the provided software and the content of its website, particularly all rights guaranteed by the Austrian Copyright Act, trademark and patent law, and other legal norms, such as usage, exploitation, and performance rights. The content of the provided software and the website may not be used by the Client without the prior written consent of smec.
10.2 By using the Software provided by smec, no “personal data” (as defined in EU Regulation 2016/679 “GDPR”) will be recorded and processed. In the event that the Client wishes smec to process personal data, the parties undertake to create the legally necessary framework conditions in accordance with Austrian privacy law (DSG) and GDPR.
Both contracting parties are obligated to keep confidential information of the contractual partner that is marked as confidential, to protect it appropriately, and not to disseminate it to third parties. This confidentiality obligation must be conferred by the contracting parties on their respective employees and external professionals (tax advisers, lawyers, IT service providers etc.). The confidentiality obligation covers all information and documents transmitted or made available by smec (eg presentations, contracts, offers, price lists). The confidentiality obligation does not extend to information that was known to the respective contractual partner before contract initiation or conclusion or that is or becomes public knowledge.
12.1 Notwithstanding any right to ordinary termination, each party may terminate the Contract early for good cause. In particular, the following reasons constitute good cause that would entitle smec to early cancellation:
12.1.1 non-contractual use of the Software and services by the Client despite a reminder from smec;
12.1.2 the breach of other major contractual provisions by the Client;
12.1.3 any other behaviour of the Client that in smec’s reasonable opinion makes it unreasonable for smec to continue the Contract.
13.1 smec is entitled at any time to amend these GTC, including without limitation, to take account of changed legal framework conditions or to include new / changed services.
13.2 smec will notify the Client in writing no longer than one month before the proposed date of entry into force of the new GTC with reference to the affected changes. The changes will be deemed approved by the Client unless the Client objects in writing to the changes 7 days prior to the proposed effective date. smec will also inform the Client about this right to objection. The period for objection is only respected, if the objection is received by smec within the deadline.
14.1 The parties stipulate Austrian substantive law to the exclusion of conflict of law rules and the UN Convention on the International Sale of Goods.
14.2 For all disputes resulting from this contractual relationship or its initiation or dissolution, the jurisdiction of the respective court in 4020 Linz with subject-matter jurisdiction is stipulated.
15.1 If a provision of the individual agreement or these GTC is legally void or ineffective, this will not affect the validity of the remaining provisions (“Severability clause”). All void or ineffective provisions must be replaced with valid provisions that come as close as possible to the intended economic goal of the void or ineffective provisions.
15.2 This agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. All agreements made prior to or upon conclusion of the contract and all declarations of intent or knowledge (in particular in preliminary discussions or advertising material) will lose all validity upon signature of the contract or these GTC. There are no oral ancillary agreements. Addenda and changes to the contractual relationship require the written form unless otherwise agreed in these terms and conditions. This also applies to the revocation of the written form requirement.
15.3 Any translation of these GTC is provided solely for your convenience and is not intended to modify the terms of this agreement. In the event of a conflict between the German version of these GTC and a version in a language other than German, the German version will prevail.
