Terms of Service

1. Scope of application, exclusion of deviating terms and conditions of business

1.1. The following General Terms and Conditions (hereinafter “Terms of Use”) govern the contractual relationship between Matchilla GmbH, Kölner Weg 4, 50858 Cologne (hereinafter “Matchilla”) and the users (hereinafter “Users”) who make use of the services offered at www.matchilla.de (hereinafter “Platform”). 

1.2. Matchilla’s privacy policy also applies (available at: https://matchilla.de/datenschutz/ and https://matchilla.com/privacy-policy/ ).

1.3. The validity of general contractual or business terms and conditions of the users is expressly excluded. This also applies if Matchilla has not expressly objected to the terms and conditions of the users and/or provides services without objection.

2. Subject matter of the contract

2.1. The platform offered by Matchilla is a B2B matching platform for marketing services. On the platform, users searching for marketing services (hereinafter “Searchers”) can post their needs for marketing agencies, marketing software, marketing freelancers and marketing consultancies. Users offering matching products or services (hereinafter “providers”) can respond to the requests of the seekers (hereinafter “requests” or “match requests”) by means of an offer and offer their services via the platform as part of an offer process (hereinafter “matching process”). The provider is free to participate in a matching process. The provider is not obliged to submit a match request if he is invited to a matching on the platform.

2.2. The platform is aimed exclusively at entrepreneurs within the meaning of § 14 of the German Civil Code (BGB). An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.

2.3. Full use of the Platform requires registration and opening of an account on the Platform in accordance with clause ‎3 is a prerequisite. The description of the scope of services and the explanations of the individual steps in the matchin process can be found at: https://matchilla.de/warum-matchilla/.

2.4. Matchilla does not become a party to the contract between Searchers and Providers in relation to the Marketing Services. Accordingly, Matchilla is not responsible for the settlement and performance between Searchers and Providers.

2.5. Users are responsible for compliance with legal provisions, for example competition law, trademark law, data protection law, when designing match requests as well as when initiating, concluding and processing contracts for marketing services, and shall indemnify Matchilla against all damages or claims arising from any violations.

2.6. All data and information provided by the users, in particular on the platform, are the sole responsibility of the users. Matchilla obliges users to provide complete and truthful data on the platform. However, Matchilla does not check the information and data of the users and therefore assumes no liability for the suitability, qualification, quality of the services or correctness of the information and data of the users or the match requests. Accordingly, seekers bear sole responsibility for the selection of the provider and its suitability.

3. Registration and its requirements , Conclusion of contract

3.1. The use of the Platform requires the registration and opening of a user account on the Platform (hereinafter “Account”). Registration is carried out as follows:

a. The user must provide the data requested in the registration form in order to register and open an account. 

b. By sending the registration form and accepting these terms of use, the user makes an offer to conclude a contract of use. 

c. Matchilla confirms receipt of the offer by sending the user an activation e-mail with a personalised activation link. The user confirms the activation link. With the release of the account by Matchilla, a contract is concluded between Matchilla and the user for the use of the services offered by Matchilla on the platform (hereinafter “contract of use”). Upon successful registration, an account is created for the user, which the user can access with the help of the given e-mail address and the password created. The password can be changed at any time via the account. 

3.2. Providers can only participate in Matching if they have concluded a separate partner contract with Matchilla after conclusion of the user contract (hereinafter “partner contract”). Matchilla contacts the providers immediately after the conclusion of the user contract. The partner contract regulates the cooperation between Matchilla and the provider. As soon as a provider has concluded a partner contract, Matchilla activates the provider to participate in Matching.

3.3. Registration is only permitted for entrepreneurs and only in the user’s own name and for the user’s own account. 

3.4. Each user may only register once. One account must be created per user. An account is not transferable. 

3.5. There is no entitlement to registration and conclusion of a user contract. Matchilla reserves the right to refuse registration and the conclusion of a user contract without giving reasons.

3.6. The data requested at the time of conclusion of the contract and in the course of processing the contract must be provided completely and truthfully. If the data changes subsequently, the user is obliged to update the information immediately. Upon request by Matchilla, the user must confirm the data. 

4. Invitation of users, responsibility for users

4.1. Users may invite other users to use the platform under an account. For this purpose, users can send an invitation (hereinafter “invitation”) from the account to their own employees or other third parties subject to their right to issue instructions. Before sending the invitation, users are obliged to ensure that the invitees agree to receive the invitation. In the event that invitees assert claims against Matchilla due to the unsolicited sending of the invitation, the user indemnifies Matchilla from all claims in connection with the sending of the invitation. Matchilla reserves the right to assert further claims against the user arising from these facts. 

4.2. For invitees who accept the invitation and register on the platform, these terms of use apply. 

4.3. Actions and statements made by the invitees during and after registration are attributed to the inviting user.

4.4. With the termination of the user contract, all user contracts of invitees also end automatically.

5. Account use, sanctions and account blocking

5.1. The user undertakes to use the platform in accordance with the statutory provisions. The user also undertakes to

a. not to make false statements regarding their own data or match requests;

b. not to use any content on the platform that violates the laws for the protection of minors or criminal laws or is pornographic in content; 

c. not to use any legally protected content without being authorised to do so;

d. not to use any content on the platform that violates copyrights, trademark rights, other property rights or personal rights;

e. only to use content on the platform for which the users have the necessary rights of use

f. not to circumvent the platform when concluding contracts with users for marketing services.

5.2. Matchilla is entitled to irretrievably delete content and information that violates the terms of use or legal regulations or is otherwise offensive and/or improper. In this respect, users have no claim to the reinstatement of already deleted content.

5.3. If a user violates the terms of use or legal regulations, or if there is any other important reason, Matchilla may

a. Change or delete the user’s content and details;

b. restrict the use of the platform and the account for a limited period of time or block it permanently;

c. terminate the contract with the user concerned without notice.

5.4. Matchilla may impose these sanctions without prior notice and without consulting the user, even against the user’s express will. Matchilla will give the user the opportunity to comment after sanctions have been taken and will reconsider the sanctions after receipt of a counterstatement. 

5.5. After a final ban, there is no entitlement to restoration of the banned account. Once a user has been blocked, that user may not log in with another account.

6. Confidentiality of access data

6.1. Users are obliged to keep login data, passwords, etc. secret and not to pass on their own access data to unauthorised third parties and to log out after each session. Declarations and actions made or committed after logging in with a user’s password and e-mail address may be attributable to the user even if the user had no knowledge thereof. In particular, imputation occurs if the user intentionally or negligently provides third parties with access to the password or the account. The user shall immediately inform Matchilla as soon as the user becomes aware that unauthorised third parties have access to and are aware of the access data. 

6.2. In the event of a justified suspicion that access data have become known to unauthorised third parties, Matchilla is entitled but not obliged, for security reasons, to independently change the access data without prior notice or to block the use of the account. Matchilla will inform the user immediately and, upon request, provide new access data within a reasonable period of time. The user has no right to demand that the original access data be restored. 

7. Granting of rights 

7.1. The user grants Matchilla the simple right of use, unlimited in terms of space, time and content, to the content posted by the user on the platform (hereinafter “user content”). This includes in particular the right to reproduce, use, operate, copy, publicly perform or display, distribute, modify, translate and create derivative versions of the distribution as well as the right to edit. In particular, Matchilla is entitled to technically edit, prepare and adapt the User Content in such a way that it can also be displayed on mobile reception devices or in services and software applications.

7.2. The granting of rights ends when the user deletes the user content or the account or the user contract ends. 

7.3. The user guarantees that he is the owner of the transferred rights and that it is possible for the user to exercise the rights specified in section ‎7.1 effectively grant the rights referred to in section 7.1. The user also guarantees that the content created does not infringe any third-party rights, in particular trademark rights, competition rights, copyrights, property rights or personal rights.

8. Term and termination

8.1. The user contract between the seeker and Matchilla can be terminated at any time. 

8.2. The user contract between the provider and Matchilla can be terminated at any time. The termination of the user contract does not affect the validity of the partner contract. Separate terms apply to the partner contract. The account of the provider will be maintained until the expiry of the partner contract and will be deleted upon termination of the partner contract, unless the account is still necessary to settle commission claims between the parties that still exist after the end of the partner contract.  

8.3. The User may give notice of termination via the account on the Platform by deleting the User’s account. Alternatively, the declaration of termination can be made by e-mail or by other notification in text form. 

8.4. The right to terminate for good cause remains unaffected. Good cause for termination of the user contract exists for Matchilla in particular if a user has repeatedly posted or used misleading or otherwise illegal information on the platform.

8.5. Termination of the contract of use shall not affect the validity of the contracts between searchers and providers.

9. Settlement after termination

The personal data deposited by users will be deleted by Matchilla upon termination of the user contract or after complete settlement of the partner contract. If Matchilla is not entitled to delete data for legal or other reasons, Matchilla may alternatively block it. As soon as Matchilla is entitled to delete the aforementioned data, this data will also be deleted by Matchilla.

10. Adaptations to the platform

10.1. Matchilla reserves the right to continuously adapt and improve the functionality of the platform. 

10.2. Matchilla is entitled to discontinue or modify the free services on the platform at any time.

10.3. Matchilla is entitled to adapt the platform or individual functions of the platform for technical reasons, insofar as this is reasonable for the users or insofar as this is required by legal provisions. 

11. Limitation of liability

11.1. Subject to the further provisions of this Clause ‎11 Matchilla shall only be liable if and to the extent that Matchilla or its legal representatives, officers, employees or other vicarious agents are guilty of intent or gross negligence. However, in the event of default by Matchilla or impossibility of performance for which Matchilla is responsible, as well as in the event of breach of material contractual obligations (so-called cardinal obligations), Matchilla is liable for any own culpable conduct or that of Matchilla’s legal representatives, officers, employees or other vicarious agents. Essential contractual obligations are defined in the abstract as obligations the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which users may regularly rely.

11.2. Except in the case of intent or gross negligence on the part of Matchilla, its legal representatives, officers, employees or other vicarious agents, Matchilla’s liability is limited to the amount of damage typically foreseeable at the time of conclusion of the contract.

11.3. Liability for loss of data shall be limited to the typical recovery costs that would have been incurred if back-up copies had been made regularly and in accordance with the risk.

11.4. Matchilla is not liable for the functioning of the telecommunication connection (telephone/ISDN/DSL lines, etc.) to its server in case of power failures, nor in case of failures of servers which are not within Matchilla’s sphere of influence. Furthermore, Matchilla is not liable for damages caused by force majeure or comparable events. Comparable events are in particular, strikes, official orders, pandemics, the failure of telecommunication networks or gateways of other operators as well as disturbances in the area of other telecommunication or service providers. Furthermore, Matchilla is not liable for user content. 

11.5. The strict liability of Matchilla for damages (§ 536 a BGB), for defects existing at the time of conclusion of the contract, is excluded. 

11.6. The exclusions and limitations of liability regulated in the above clauses shall not apply in the event of the assumption of express guarantees, in the event of claims due to the lack of warranted characteristics and for damages arising from injury to life, limb or health and in the event of mandatory statutory regulations. The provisions set out in para. ‎11.2 do not apply to claims for interest on arrears, to the lump sum for arrears pursuant to § 288 para. 5 BGB (German Civil Code) and to compensation for the damage caused by the delay, which is based on the costs of legal action.

11.7. Claims under the Product Liability Act shall remain unaffected by the provisions of this Clause ‎11 unaffected.

12. Exemption

The user indemnifies Matchilla upon first request against all claims of third parties, in particular claims based on false information provided by the user as well as copyright and property right infringements, which are raised against Matchilla in connection with the contractual use of the user’s information and data. The indemnification also includes the reimbursement of the costs incurred or incurred by Matchilla through legal prosecution/defence. This does not affect further claims for damages by Matchilla. Insofar as Matchilla itself is responsible for the infringement, claims against the user are excluded.

13. Data protection

The parties shall comply with the applicable data protection provisions, in particular those applicable in Germany.

14. Language, wording of the contract, applicable law, place of jurisdiction and place of performance

15.1. All contracts between users and Matchilla are concluded exclusively in German. The contractual language is German. 

15.2. All contract texts are accessible to the users on the platform in the current version. 

15.3. These Terms of Use and the contracts regulated therein shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and conflict of laws provisions. 

15.4. The registered office of Matchilla (currently: Cologne) is the exclusive place of jurisdiction for all legal disputes arising from or in connection with the Terms of Use.

15.5. Place of performance is the registered office of Matchilla (currently: Cologne).

15. Amendment of these Terms of Use, severability clause

16.1. Matchilla reserves the right to unilaterally amend these Terms of Use if this appears objectively justified. Changes are objectively justified, for example, in the event of an extension of the functions of the platform, a change in the legal or statutory situation (for example, if case law declares a clause to be invalid) or if the equivalence relationship existing at the time of conclusion of the contract is disturbed to a not insignificant extent by unforeseeable changes which Matchilla has not caused and over which Matchilla also has no influence. The prerequisite for a change is always that it is reasonable for the user. 

16.2. Users will be notified of changes to the terms of use. They are deemed to be approved if the users have not objected to the validity of the amended terms of use within four (4) weeks in writing or by e-mail to Matchilla and Matchilla has pointed out the legal consequences of a failure to object.

Status: February 2023

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