General terms and conditions

Subject Matter of the Contract and Contents of Service
1. FACTOR-A/DEPT® and the Dept Marketplaces GmbH (hereinafter referred to as “FACTOR-A/DEPT® “) assists manufacturers and brands (hereinafter referred to as “clients”) in their operative tasks in cooperation with Amazon. To this end, FACTOR-A/DEPT® provides operational advice, implements operational tasks at the request of the client and operates software – factor-a suite and amabid (hereinafter referred to as “factor-a software”) – which is made available to the client within the framework of a cooperation. The factor-a software offers analyses, evaluations and recommended actions for the products sold to Amazon by the client.
2. The services offered by FACTOR-A/DEPT® within the scope of consulting and optimisation to the client are detailed and described in Section 3 of this contract. They are recommended and implemented byFACTOR-A/DEPT® depending on the necessity and suitability to achieve the consulting objective of FACTOR-A/DEPT®, as far as the client wishes and agrees.
Services of FACTOR-A/DEPT® and the factor-a Software
1. FACTOR-A/DEPT® advises the client in all operational matters which can have a positive influence on the performance of the client and his or her products on Amazon. This consulting service can also include the concrete implementation of optimisation measures. The scope of this consultation is set out in detail in the Section “Service and Calculation” of this contract offer.
2. In addition, FACTOR-A/DEPT® offers the client access to the factor-a software for the duration of the contractual cooperation after conclusion of the contract. This enables the client to obtain analyses, evaluations, comparisons of competitive products and recommendations for action. Each user receives user-specific access data with which access to the factor-a software via a personal user account is granted.
3. Analyses and recommendations for action are prepared by FACTOR-A/DEPT® according to the current state-of-the-art software, based on algorithms developed by FACTOR-A/DEPT®. Nevertheless, FACTOR-A/DEPT® cannot guarantee that the implementation of the proposed steps will actually lead to an increase in turnover for the benefit of the client. Liability for a negative impact is excluded as long as it was not caused on the part of FACTOR-A/DEPT® through gross negligence or willful misconduct.
4. With regard to the factor-a software, FACTOR-A/DEPT® reserves the express right to extend, modify or improve the service at any time. The customer will be informed about such changes within the scope of updates at regular intervals by email and via the website factor-a.de. Restrictions on the scope of services are only possible if they are unavoidable for legal reasons or if the client agrees to them per FACTOR-A/DEPT®’s request. The consent of the client is deemed to have been given if the client does not object to a corresponding notice from FACTOR-A/DEPT® within a period of six weeks from receipt of the notice in written form. If the changes are an improvement, a claim to the use of the unimproved version is excluded.
5. FACTOR-A/DEPT® strives to realise all relevant data points of the factor-a software as promptly as possible after their change. Due to the technical conditions, no guarantee can be given that the data is always up-to-date and correct. Similarly, due to changes that are beyond the influence of FACTOR-A/DEPT® (e. g. due to changes and modifications on Amazon), individual data points may no longer be mapped. Liability for this is expressly excluded as long as FACTOR-A/DEPT® has not caused this through gross negligence or willful misconduct.
6. FACTOR-A/DEPT® undertakes to keep all data and information received from the client within the scope of the contractual relationship confidential, even after a termination of the contractual relationship.
Obligations of the Client, Cooperation
1. The client’s designated contact persons must be capable and entitled to make any necessary decisions for the client or to bring about such decisions without delay.
2. The client shall provide FACTOR-A/DEPT® with the information and documents agreed in this contract or, in FACTOR-A/DEPT®’s opinion, required for the provision of the contractual services and shall provide FACTOR-A/DEPT® with other cooperation services required for the execution of the contract. Additional expenditures incurred by FACTOR-A/DEPT® due to incomplete or untimely cooperation of the client, despite a corresponding request, are to be charged separately. FACTOR-A/DEPT® requires that the client is able to supply Amazon at all times with the products (ASINs) managed by FACTOR-A/DEPT® and that the goods delivered to Amazon comply with Amazon’s profitability guidelines.
3. Insofar as cooperation acts are carried out too late, bindingly agreed upon fixed deadlines will be postponed, in addition a reasonable time for organisation and personnel resources already made available shall be remunerated according to the scope of work incurred in accordance with the calculation.
4. The client is aware that search engine optimization (Amazon SEO), in particular, is an ongoing process and that search engine placement depends on a large number of factors that are subject to constant change and are not announced by Amazon.
5. The client is also aware that he or she is in competition with other providers on Amazon. If the client deviates from the procedure recommended by FACTOR-A/DEPT® or does not make use of services that are necessary for the success of the project in the competitive environment, a competitive disadvantage and thus lower output can arise for the client.
6. With regard to the factor-a software, the client shall provide FACTOR-A/DEPT® with the necessary information requested by FACTOR-A/DEPT® in order to set up the user account. This concerns, in particular, access to the corresponding Amazon Vendor account.
7. The analyses, evaluations, data and recommendations for action from the factor-a software may only be used by the client for internal purposes. The client is prohibited from altering, selling, translating or passing on the software to third parties or transferring FACTOR-A/DEPT®’s analyses, evaluations and recommendations for action in any form whatsoever.
8. The client shall ensure that the use of the FACTOR-A/DEPT® software does not violate existing contracts with Amazon. In addition, the client refrains from using the knowledge generated by FACTOR-A/DEPT® to exploit this knowledge for the purpose of influencing Amazon’s ranking in a way that is relevant under criminal law.
9. The client is responsible for the way in which he/she uses the factor-a software and guarantees a legally compliant use.
Access Authorisation and Use of the Software
1. For the use of the factor-a software, FACTOR-A/DEPT® provides the client with access data (up to three users) after conclusion of the contract, which are not transferable. The receipt of personal log-in data shall be confirmed by the client at the request of the contractor.
2. At the same time, in order to prevent misuse, the client assures that the initial password received for access will be changed immediately and that existing passwords will be changed regularly, and that the access data and passwords will be protected from unauthorised access, and that they will not be passed on to third parties under any circumstances. Access to the factor-a software is personal.
3. Unauthorised disclosure of the access data constitutes a considerable violation of these terms and conditions and can lead to damages and disadvantages for which FACTOR-A/DEPT® cannot be held liable. Such unauthorised disclosure also entitles FACTOR-A/DEPT® to terminate the contract without notice.
4. The client undertakes to regularly update the access software used by the client, e. g. in the form of a browser, to keep it up-to-date in order not to favour unauthorised access and manipulation by third parties.
5. In addition to any possible liability of third parties, the client shall be liable in particular for acts of third parties which they undertake under his account, such as for vicarious agents.
6. The client shall indemnifyFACTOR-A/DEPT® from the costs and claims of third parties arising from a violation of the above-mentioned obligations under Sections 5.1. to 5.5.
Warranty and Liability
1. Claims for damages on the part of the user, irrespective of the legal grounds, as well as claims for reimbursement of futile expenditure are excluded, unless the cause of damage is based on a grossly negligent or intentional breach of duty or at least on a negligent breach of essential contractual obligations (cardinal obligations) by FACTOR-A/DEPT®; in this case the liability is limited to the amount of the typically foreseeable damage.
2. The above limitation of liability does not apply to damages resulting from injury to life, limb or health, in the case of liability under the Product Liability Act or insofar as FACTOR-A/DEPT® has assumed a guarantee.
3. Claims for damages by the client, which are based on a simple negligent breach of duty by FACTOR-A/DEPT®, can no longer be asserted after one year after the damage has occurred.
4. FACTOR-A/DEPT® does not guarantee that the software is available, accessible and free of errors at all times. Due to technical circumstances over which FACTOR-A/DEPT® has no influence, access and transmission delays or failures may occur.
5. FACTOR-A/DEPT® cannot be held responsible for the decline or stagnation of the position of the products in relation to relevant search terms on Amazon, the loss of ownership of the buy box, negative product evaluation or other developments and the associated impact on visitor numbers and/or sales.
Availability and Downtime
1. FACTOR-A/DEPT® guarantees an annual average availability of the FACTOR-A/DEPT® software of 95% and reserves the right to temporarily limit the contractual services with regard to capacity limits, maintenance work as well as system- and security-related measures.
2. With regard to the defined availability guarantee, periods in which FACTOR-A/DEPT®’s service is not available due to circumstances that do not fall within the scope of FACTOR-A/DEPT®’s responsibility (e. g. malfunctioning of lines to FACTOR-A/DEPT®’s servers, power outage, disruption of the Internet, DDOS attacks, failure of Amazon’s servers) are not taken into account.
Other Services and Additional Expenditure
1. The client can order additional consulting services and special evaluations individually at FACTOR-A/DEPT®. These are commissioned by the client to FACTOR-A/DEPT® in written form by means of a separate cost estimate.
2. The creation of images and/or video material, e. g. for the so-called A+ content, is not part of the contractual services of FACTOR-A/DEPT®, but can be ordered by the client and will be billed separately.
3. Marketing and media budgets for Sponsored Ads or the Amazon DSP are initially planned between FACTOR-A/DEPT® and the client and used for individual measures by FACTOR-A/DEPT® after prior consultation with the client. These media and/or marketing budgets accrue in addition to FACTOR-A/DEPT®’s remuneration and are provided in advance by the client to FACTOR-A/DEPT® for the entire contract period.
4. Any additional expenditure incurred as a result of changes to guidelines or content requirements on the part of Amazon or on the part of the client shall be reimbursed separately if this exceeds the budget from the calculation (according to the respective sub-item). The daily rates mentioned in the FACTOR-A/DEPT® rate card apply.
Third-party Costs, Cash Expenses, Travel Expenses
1. The client shall reimburse FACTOR-A/DEPT® for travel and accommodation costs incurred in connection with the consultation. All external costs and cash expenses shall be agreed upon with the client before their implementation and shall be reasonable.
2. All external costs incurred in connection with this contract shall be passed on to the client without any commission surcharge, accompanied by receipts. Cash expenses and special costs incurred by FACTOR-A/DEPT® at the express request of the client shall be charged at cost price.
3. If the client should change or discontinue additional consulting services outside of the ongoing support, he shall reimburse FACTOR-A/DEPT® the fees and/or time incurred up to then, reimburse all costs incurred and indemnify FACTOR-A/DEPT® from any third party claims that may arise, in particular from contractors of FACTOR-A/DEPT®.
Confidentiality and Duty of Discretion
1. FACTOR-A/DEPT® will keep all information and documents that come to its knowledge within the framework of the cooperation with the client strictly confidential and with the utmost discretion. This information will not be passed on to third parties and FACTOR-A/DEPT® will comply with the legal provisions of data protection according to the GDPR and Federal Data Protection Act (BDSG). All employees and third parties who receive such information or documents for the execution of work within the scope of this contract are obliged to maintain the same level of discretion. FACTOR-A/DEPT® is entitled to collect, use and publish anonymised success data within the scope of case studies.
2. All work results, product data, materials, reports, evaluations, screenshots and contents of the software solutions of FACTOR-A/DEPT® provided by FACTOR-A/DEPT® to the client may only be used by the client and his/her employees and may not be passed on to third parties.
Miscellaneous
1. FACTOR-A/DEPT® is entitled to use the client’s company name and logo for the online and offline marketing of the services offered by FACTOR-A/DEPT® as a customer reference. The client grants FACTOR-A/DEPT® the trademark and copyright easements necessary for this use. In addition, FACTOR-A/DEPT® may collect, evaluate and use anonymised success data of the client.
2. The parties shall not entice away employees of the other party for a period of two years from the date of signing this contract. The parties shall be bound by this for a period of one year after any premature or regular termination of the contractual cooperation.
Changes of Contract, Jurisdiction and Safeguarding Clause
1. Amendments and additions to this contract must be made in writing in order to be valid. This also includes the amendment of the written form clause.
2. There are no verbal side agreements. All additional agreements must be in written form.
3. The client’s general terms and conditions do not bind FACTOR-A/DEPT®, even if no express caveat or proviso has been declared against these general terms and conditions.
4. Should a term of this contract be or become ineffective, the validity of the remaining terms remain unaffected. The invalid term shall be replaced by a term that comes as close as possible to the intention of the parties and the intended economic purpose within the limits of what is legally possible and permissible.
5. In the event of disputes arising from the conclusion, performance or termination of this contract, the parties agree that the place of jurisdiction shall be the registered office of FACTOR-A/DEPT®. German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
6. This agreement has been drawn up in the German and English language. In cases of doubt, the German wording shall prevail.