Wagawin GmbH (“Wagawin“) is an IT company that provides its customers (“Advertisers“) with the opportunity to place advertising ofspecial quality on mobile devices. For this purpose, Wagawin has developed theso-called LivingAd technology (“LivingAds“). LivingAds are proprietary mobile display and video advertising formatsthat allow the end user to provide feedback to the Advertiser through variousintegrated interaction elements directly in the advertisement. This enables theLivingAds of Wagawin to generate exclusive 1st-party target group data.Advertisers can receive the data in real time if they use appropriate systems(“Tracking Solutions“). TheAdvertiser is the exclusive owner of the collected data and can, at his owndiscretion, activate it for further advertising activities via his dataplatforms.

Wagawin offers these services as so-called Self Service and as so-called Managed Service. These services differ with respect to the scope and access tothe Wagawin platform. These General Terms and Conditions apply exclusively toservices within the scope of the Managed Service.

As part of the Managed Service, Wagawin handlesthe complete campaign management according to the Advertiser’s instructions,from the creation of the LivingAds on the Wagawin platform to the managementand optimization of the campaign. Wagawin also handles the media purchasing,which takes place via direct and programmatic placements. LivingAds arecompatible with IAB Standards VPAID 2.0 and MRAID 2.0. The collected data aresent in real time directly to the Advertiser’s data platforms, if desired. TheAdvertiser is informed about the campaign progress through regular reporting.The exact details of each campaign are specified in separate Insertion Orders(“IO“). Wagawin takes noresponsibility for the success of the advertising campaign.


1.1 These General Terms and Conditions onlyapply to companies in the sense of section 14 German Civil Code (Bürgerliches Gesetzbuch, “BGB“). Consumers cannot become users of the Wagawin platform and cannot use the services of Wagawin.

1.2 General Terms and Conditions of the Advertiser do not apply unlessWagawin has expressly accepted these. Individual agreements between Wagawin and the Advertiser always take precedence over these GTCs.


2.1 To use the Managed Services, the Advertiser must place an IO. A bindingcontract for the performance of Managed Services only comes into effect whenthe IO is confirmed by Wagawin. The confirmation by Wagawin is made by e-mailand/or by letter.

2.2 Unless otherwise agreed in the IO, these GTCs shall apply to theperformance of Managed Services. This shall also apply if no explicit referenceis made to these GTCs in the IO.


The specific services to be performed are defined in detail in therespective IOs.


4.1 The Advertiser is obliged to provide Wagawin with the advertisingmaterials required for the performance of services.

4.2 By making the advertising material available for the use in connectionwith the execution of an IO, the Advertiser grants Wagawin for the time of theagreed advertising placement the non-exclusive and territorially unrestricted right to use the advertising material in the manner agreed in the respectiveIO.


The Advertiser is not allowed to provide advertising material or other datathat

5.1 does not comply with the basic rules forcommercial communication of the German Advertising Council (Deutscher Werberat);

5.2 violates the law for the protection of minors;

5.3 contains content that glorifies violence, war, sedition, contempt forhumanity,

5.4 signs of unconstitutional organizations,

5.5 or other illegal content

or that refers to advertising material of such content. Furthermore, the Advertiser may not provide advertising material or other data that violates therights of third parties.


6.1 For Wagawin compliance with data protectionregulations is a major concern. Any processing of personal data is thereforestrictly in accordance with the provisions of data protection law, inparticular the EU-General data protection regulation (Datenschutzgrundverordnung; “DSGVO”). The Advertiser will find further information regarding the use of data in the data protection declaration published on thewebsite

6.2 To the extent Wagawin generates 1st-Partytarget group data in the form of personal data while performing the ManagedService, data processing by Wagawin is exclusively performed as  contract processing on behalf of the Advertiser for the contractual provision of the LivingAds.In this respect, the contract on order data processing (Contract on order dataprocessing according to Art. 28 DSGVO) applies.

6.3 The Advertiser is entitled to all commercial rights relating to the 1st-party target group data.

6.4 The Advertiser is not entitled to any rights relating to the Wagawinplatform, in particular regarding the LivingAd technology (including content and databases).


7.1 The prices for the Managed Services are specified in the respective IO.

7.2 Unless otherwise agreed, Wagawin’s payment claims become due upon conclusion of the contract for the respective Managed Services and are payable even before the complete performance of services by Wagawin. Unless otherwise agreed, the Advertiser is in default if he does not pay within 14 days of the invoice date. Objections to invoices must be raised by the Advertiser within 14 days of receipt of the invoice at the latest; otherwise the invoice shall be deemed approved.

7.3 Payments shall be made to the account of Wagawin and the Advertisershall bear all costs of the payment transfer.

7.4 If the Advertiser is in default of payment, Wagawin is entitled to demand interest on arrears at the statutory rate and to charge reminder costs.Wagawin reserves the right to assert further damages caused by delay.


8.1 Wagawin shall only be liable for gross negligence (grobe Fahrlässigkeit) and intent (Vorsatz) as well as for the breach of obligations the performance of which is a prerequisite for the proper execution of the contract and on the compliance of which the Buyer is regularly entitled to rely on (“Essential Obligations”).

8.2 In respect of a slightly negligent breach of an Essential Obligation,Wagawin’s liability is limited to the typical damage foreseeable upon conclusion of the contract.

8.3 Wagawin is not liable for a slightly negligent breach of contractual obligations that are not essential obligations.

8.4 Insofar as Wagawin’s liability is limited or excluded, this also applies to the liability of Wagawin’s employees, representatives or vicariousagents.

8.5 The aforementioned limitations or exclusionsof liability do not apply if Wagawin has maliciously (arglistig) failed to disclose a defect, has assumed a guarantee or a procurement risk, is liable on the basis of the German Product Liability Act and in the event of bodily injury (injury to life, limb or health). This does not lead to a change in the burden of proof to the detriment of the Advertiser.

8.6 Wagawin takes no responsibility for the success of an advertising campaign ordered by the Advertiser.


9.1 No guarantees are agreed. Warranty claims shall be based on the statutory provisions subject to the following regulation:

9.2 The warranty period for the services ends one (1) year after acceptance.

9.3 If a defect already exists at the time ofthe transfer of risk and the Advertiser notifies Wagawin accordingly, Wagawin shall remedy the defect at its own expense (“SubsequentPerformance“). The Advertiser grants Wagawin a sufficient,reasonable period of time for Subsequent Performance, which shall in no case beshorter than one (1) month from receipt of the Advertiser’s complaint of defects. Subsequent Performance shall take place at the original place of delivery and shall only be deemed failed after at least three unsuccessful attempts.


10.1 The Advertiser assures that advertising material and data provided by him for the purpose of use in connection with Managed Services as well as the advertised contents do not violate applicable law in the intended circulation area of the advertisement and the Federal Republic of Germany, and that he can freely dispose of all rights to the advertising material, in particular property rights and/or personal rights, insofar as they are necessary for the placement of the advertising material.

10.2 If claims are asserted against Wagawin inconnection with the performance of services due to actual or alleged infringement of third party rights or other violations of applicable law, which are attributable to the contractual use on advertising material provided by the Advertiser (hereinafter referred to as “Third Party Claims“), Wagawin and the Advertiser have to inform each other immediately and coordinate the defense of Third Party Claims in close cooperation.

10.3 If Wagawin incurs costs and/or damages in connection with the defence or other handling of Third Party Claims (including the legally stipulated costs for legal prosecution or defence), the Advertiser has to indemnify Wagawin from such costs and damages. If Wagawin incurs costs and/or damages (including the legally stipulated costs for legal prosecution or defence) due to a settlement concluded by Wagawin, which has to be agreed upon beforehand between Wagawin and the Advertiser and decided upon jointly, the Advertiser has to indemnify Wagawin from such costs and/or damages.


11.1 The Advertiser is obliged not to discloseto third parties any confidential information (including business secrets),which he gets to know in the course of his business relations with Wagawin, andto use such information only to fulfill his contractual obligations to Wagawin.This applies in particular to prices. No third parties in the meaning of this provision are employees in the business operations of the Advertiser, provided that they are also subject to an obligation of confidentiality. Confidential Information means (i) all commercial and technical information not in the public domain, or (ii) other information marked “Confidential” or similarly marked, or (iii) information considered confidential under the circumstances (hereinafter “Confidential Information“). No confidential information in the meaning of the foregoing shall be information, which (i) were in the public domain or known to the Advertiser at the time of transmission or subsequently became so, (ii) were lawfully made available to the Advertiser by third parties or (iii) were developed by the Advertiser himself without using confidential information. The obligation of confidentiality does not apply if the Advertiser is obliged to disclose the confidential information by law or on the basis of an existing or legally binding official or court decision. In this case the Advertiser will immediately inform Wagawin about the obligation of disclosure. Upon Wagawin’s request the Advertiser has to return the confidential information to Wagawin immediately or destroy it.

11.2 The Advertiser is obliged to keep all third party information, including data provided via the platform, confidential and to use it exclusively for the planning and management of advertising campaigns, including post campaign analysis.


12.1 The term of the respective IO and any ordinary termination rights in this respect shall be specified in the respective IO.

12.2 The statutory right of both parties to terminate the contract without notice for good cause shall remain unaffected.


In cases of force majeure or other events which were unforeseeable uponconclusion of the contract and which Wagawin could not avert despite taking reasonable care according to the circumstances of the individual case, such as war, natural disasters, epidemics or pandemics, operational breakdowns, legalstrikes, lock-outs or governmental orders, Wagawin is entitled to postpone the performance of its services for the duration of the impairment and a reasonable lead time. If such impairments lead to a delay in performance of more than three months, both parties may withdraw from the contract. If, due to the aforementioned circumstances, the performance of services becomes impossible or unreasonable without Wagawin being responsible, Wagawin shall be entitled to withdraw from the contract in whole or in part with respect to the portion of the contract not yet fulfilled. In this case the Advertiser shall not be entitled to any damage claims against Wagawin. Any statutory rights of withdrawal shall not be affected thereby.


14.1 The assignment of the Advertiser’s rights and obligations from the contractual relationship with Wagawin is only permitted with the prior consent of Wagawin.

14.2 The Advertiser is only entitled to offsetting (Aufrechnung) against counterclaims if the counterclaims are undisputed, or have been finally and non-appealably established. The Advertiser is only entitled to exercise a right of retention (Zurückbehaltungsrecht) if the counterclaims are undisputed or have been finally and non-appealably established and it they are based on the same contractual relationship.


15.1 If Wagawin does not exercise a right or only exercises it with delay,this cannot be interpreted as a waiver of this right. Even the exercise of only individual rights or parts thereof does not constitute a waiver of the unexercised rights or parts thereof.

15.2 These GTCs shall be subject to the law of the Federal Republic of Germany under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

15.3 The place of jurisdiction for all disputes arising from or in connection with these GTCs shall be Munich, if the Advertiser is a merchant (Kaufmann) as definedby the German Commercial Code (Handelsgesetzbuch; “HGB”) or does not have its registered office or habitual residence in a member state of the European Economic Area. However, Wagawin is also entitled to bring an action at any other legal place of jurisdiction.

15.4 If a provision of the contract, including these GTCs, is or becomes invalid in whole or in part, the validity of the remaining provisions of the contract shall not be affected by the invalidity of said provision.