GTC

GENERAL TERMS AND CONDITIONS (GTC)

Preamble:

  1. Tracify GmbH, Agnes-Pockels-Bogen 1, 80992 Munich, Germany (hereinafter referred to as "Contractor") has developed an SaaS platform for the tracking of user data (hereinafter "Software"). The use of the Software and the provision of supplementary services ("Services") are subject to these General Terms and Conditions ("GTC"). An individual agreement, if applicable, between the parties shall take precedence over these GTC.
  2. Our offers are directed only to entrepreneurs (according to § 14 BGB (German Civil Code)), i.e. to natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, act in the exercise of their commercial or independent professional activity. We do not conclude contracts with consumers (according to § 13 BGB (German Civil Code)).

Rights of Use:

  1. Subject to the full payment of the agreed remuneration, the Contractor shall grant the Customer the non-exclusive, non-transferable, worldwide right to use the Software for the intended use for the duration of the Agreement. The Customer may only use the Software within the scope of the contractual provisions. The Customer may use the Software only for its own purposes. Use for own purposes shall include the intended use of the Software for general business purposes of the Customer and the processing of the Customer's data. This does not include the use of the Software for and/or on behalf of third parties, for example as a service provider or any other use for and/or by third parties.
  2. The Software may be used for the brand specified in the order, whereby the right of use includes all domains for the respective brand. A separate right of use is required for each additional brand, including sub-brands, of the Customer.
  3. The Customer shall be entitled to have the Software used by its own employees or by third parties for its own purposes. The Software may be used by named users of the Customer. The Customer shall document the respective authorized users. Joint use of the Software by different users under a joint user account is not allowed. The Customer shall be responsible for the use of the Software by its users and for all damage caused by negligent or intentional breaches of duty by its users.
  4. The Customer shall not receive any rights to the source code of the Software.
  5. Unless otherwise agreed, all rights to Software and services provided by the Contractor or developed under this Agreement shall belong solely to the Contractor. All rights to any kind of modification, development or improvement of the products or services made by the Customer shall also be the exclusive property of the Contractor.
  6. The Software may contain open source software components. The use of these components is exclusively subject to the corresponding terms of use of the open-source software components which are transmitted and/or referenced within the scope of the open source software components. No provision of these GTC shall affect the rights or obligations of the Customer under the corresponding terms of use of the open source software components. In the event of contradictions or conflicting provisions of license terms of the open source software and the provisions of these GTC, the license terms of the open source software shall take precedence.
  7. The right to use the Software also extends to fixes, patches, developments and updates which the Contractor makes available to the Customer. The right to updates does not include the right to a right to use new/additional products and functionalities which are provided as a separate product/module.
  8. The Contractor shall provide the Software and documentation of the software in electronic form.
  9. Unless otherwise agreed or prescribed by mandatory law or applicable open source software terms of use, the Customer shall not be entitled to
  • copy the Software beyond what is necessary for use in accordance with the Agreement, neither in whole nor in part;
  • modify, correct, adapt, translate, improve or otherwise make derivative developments to the Software;
  • rent, lend, sell, license, transfer or otherwise make the Software available to third parties;
  • reverse engineer, decompile, disassemble or otherwise attempt to decipher the source code of the Software, either in whole or in part;
  • circumvent or violate security devices or protection mechanisms contained in or used for the Software;
  • take measures that are suitable to cause damage to the Software or the servers of the Contractor;
  • remove, delete, erase, obliterate, modify, conceal, translate, combine, add to or otherwise alter any trademark, documentation, warranty, disclaimer of liability or other rights, such as intellectual property, signs, notices, markings or serial numbers, which are associated with the Software or documentation;
  • use the Software in a manner that violates applicable law and/or the rights of third parties;
  • use the Software for the purposes of benchmarking or competitive analysis of the Software, for the development, use or provision of a competing software product or competing services or for any other purpose that is detrimental to Contractor; and/or
  • use the Software for or in connection with the planning, construction, maintenance, operation or use of hazardous environments, systems or applications or other safety-critical applications or otherwise to use the Software in a manner that could lead to physical injury or serious damage to property.

Obligations of the Customer:

  1. The Customer shall grant the Contractor read-only access to its respective Ads Manager accounts (e.g. Facebook Ads Manager) of the social media platforms where it analyzes and optimizes the success of its marketing with the Software and/or where it imports or enriches data generated by means of the Software ("Ads Manager"). The Contractor shall use this access exclusively for testing purposes as part of the implementation and continuous evaluation and optimization of the Software and for billing purposes.
  2. When using the Software, the Customer shall comply with all applicable legal provisions, including the contractual terms, policies and guidelines of the platforms used in connection with the use of the Software (e.g. Facebook).
  3. The Customer shall support the Contractor in the provision of the contractual services to a reasonable extent. The Customer shall provide in advance, without being requested to do so, all cooperation services, information, data, files, materials which are necessary for the Contractor to fulfill its contractual obligations. If the Customer fails to cooperate sufficiently and/or causes delay, the Contractor shall not be obliged to fulfill the contractual obligations as long and as far as the Contractor is prevented from fulfilling the contractual obligations due to insufficient and/or delayed cooperation of the Customer. The Contractor shall inform the Customer of its insufficient or delayed cooperation and set a reasonable deadline for subsequent performance. If the Customer nevertheless fails to fulfill his obligations to cooperate, any resulting increases in remuneration, additional expenses (e.g. additional work, cancellation costs, travel expenses) and postponements of deadlines that cannot be avoided by the Contractor shall be borne by the Customer. After fruitless expiration of the grace period, the affected software or service shall be deemed to have been provided or rendered.
  4. The Customer shall be responsible for (I) adequate security processes, tools and controls for systems and networks interacting with the Software, (II) maintaining alternative processes in case of lack of availability of the Software, (III) determining whether the technical and organizational measures of data protection and data security provided by Contractor meet Customer's specific requirements; (IV) adequate internal training of users and provision of internal technical support; and (V) proper backup of all programs and data located on its system environment and of all data transferred to the Software and of all data and work results created with the Software upon commencement of use of the Software and at reasonable regular intervals thereafter.

Warranties:

  1. Contractor warrants that the Software shall be provided by Contractor free of defects and, if used as intended, shall essentially comply with the specifications stated in the documentation.
  2. Contractor warrants that the Customer’s use of the Software in compliance with these GTC does not infringe any third-party intellectual property rights.
  3. Technical data, specifications and performance data in public statements, in particular in advertising material, do not in any way represent contractual quality specifications for the Software.
  4. In the event of defects, the Customer's claims for defects are initially limited to subsequent performance. The Customer shall notify the Contractor in writing of any defects that occur with a description of the defect and request that the defect be remedied. In the event of proven defects, the Contractor shall provide warranty by means of subsequent performance in such a way that the Contractor makes the Software available or provides it again in a defect-free condition or rectifies the defect.
  5. If the subsequent performance finally fails after two attempts at subsequent performance, the Customer may terminate the affected contract or reduce the remuneration appropriately. The Contractor shall pay damages or compensation for futile expenditure due to a defect within the limits of liability as set out in these GTC.

Provision of Software and Services:

  1. The Software shall be provided as “Software as a Service”, that means that the Contractor makes the Software available to the Customer in a logically separated account for remote access via the Internet. The Software shall not be distributed to the Customer. The Software is made available to the Customer in its current version/release.
  2. The Software shall be provided in accordance with Contractor's Service Level Agreement (SLA), which is available at www.tracify.ai/legal and which is expressly incorporated into these GTC and the Agreement.
  3. Based on the data collected and analyzed with the Software, the Software may, in specific use cases, generate evaluations, reports, analyses and recommendations (hereinafter "Recommendations"). The accuracy and quality of these Recommendations depends on various factors, in particular on the quality and quantity of the collected data. Accordingly, Recommendations are non-binding, Contractor assumes no consultant liability or other liability for the Recommendations, and the Customer should not make any decisions and material dispositions solely on the basis of the Recommendations of the Software.
  4. The Customer shall provide a current standard web browser (Google Chrome) for the use of the Software. The Customer is responsible for the provision and operation of all hardware and operating software and for a secure and fast Internet connection.
  5. Software and other work results shall be deemed delivered as soon as they have been made available to the Customer. Services shall be deemed to have been rendered as soon as the respective Service has been completed. Support/maintenance shall be deemed to have been provided on a monthly pro rata temporis basis.
  6. Unless otherwise agreed, the Software and the Services shall not be subject to acceptance by the Customer, but shall be deemed accepted upon delivery. If acceptance is contractually agreed and if the Customer has not complied with the time or test plan for acceptance, or if such a test plan or a time limit for tests and acceptance is not available, the Software and the Services shall be deemed accepted ten working days after delivery.
  7. The Contractor shall be entitled to use subcontractors or other vicarious agents (collectively referred to as "Subcontractors") to perform the contractual obligations. The Contractor shall ensure that subcontractors are bound by obligations regarding secrecy and data protection in accordance with these GTC. The use of subcontractors shall not affect the Contractor's contractual obligations towards the Customer. The Contractor shall be liable for any non-performance or improper performance of services by a subcontractor as if it were the Contractor’s own fault.
  8. Within the scope of the use of the Software, the Contractor may send the Customer or the Customer's employees registered as users of the Software information on the Software, e.g. on updates, upgrades and new functionalities and also general information relevant in the context of the use of the Software, by e-mail to their respective registered e-mail addresses.

Remuneration and Payment Terms:

  1. Unless otherwise agreed, the remuneration for the use of the Software shall also be calculated on the basis of a percentage value of the total advertising budget managed via the Ads Managers ("Ad Spend"). This shall be based on the budget displayed in the respective Ads Manager for the respective period.
  2. Unless otherwise agreed, the use of the Software shall be invoiced in arrears on a 30 day basis. If applicable, the initial setup shall be invoiced at the beginning of the initial term.
  3. Invoices shall be sent by e-mail. The Customer shall pay invoices within 14 days of the invoice date without discount or other deductions. Unless otherwise agreed, the indication of an order number or purchase order number on the invoice is not a prerequisite for the payment obligation.
  4. In the event of default in payment, interest on arrears shall be due at the statutory rate. The Contractor shall be entitled to temporarily disable the Customer's access to the Software in the event of a delay in payment of more than 30 days until the overdue invoice has been paid.
  5. The prices quoted do not include VAT, sales tax or other taxes. These will be invoiced separately to the Customer, if applicable.

Limitation of Liability:

  1. The Contractor shall only be liable for slight negligence, both for its own conduct and for attributed conduct, insofar as essential contractual obligations (cardinal obligations) are violated. In this case the liability is limited to the contract-typical and foreseeable damage. Essential contractual obligations are those obligations whose breach jeopardizes the achievement of the purpose of the Agreement, whose fulfillment makes the proper execution of the Agreement possible in the first place and on whose compliance the Customer regularly relies.
  2. For the aforementioned cases of limited liability, the amount of such liability shall additionally be limited for each case of damage to the amount of the remuneration to be paid annually by the Customer (the remuneration that was paid or would have been paid by the Customer in the last 12 months prior to the occurrence of the damage or, if the Agreement had not yet been running for 12 months when the damage occurred, the average of the previous remuneration per month x12) and to twice the remuneration to be paid annually by the Customer for all cases of damage occurring in a contractual year.
  3. The Contractor shall only be liable for indirect and consequential damages as well as for lost profits, additional personnel costs, useless expenses and omitted savings, etc. in the event of intent and gross negligence.
  4. The limitations of liability shall not apply to claims due to intent and gross negligence, in the event of personal injury, in the event of fraudulent intent, insofar as the Product Liability Act applies, as well as for damages which fall within the scope of protection of an independent guarantee, quality or durability guarantee given by the Contractor, insofar as nothing to the contrary results from the respective guarantee agreement.
  5. If the Customer violates its obligation to properly back up data, the Contractor's liability for loss of data shall be limited to the amount of the damage that would have occurred even if the Customer had properly and regularly backed up the data.

Confidentiality:

  1. Each of the Parties undertakes to treat as confidential all information received within the framework of the contractual cooperation which (a) is marked as "confidential" or "secret" or with an equivalent reference or is verbally designated as confidential; (b) is to be regarded as confidential due to its content; or (c) is derived from confidential information which has been made available; exclusively for the purposes of the contractual cooperation, and to protect it from being disclosed to unauthorized third parties. This confidentiality obligation shall be imposed on all persons entrusted with the execution of this Agreement.
  2. Excluded from the confidentiality obligation is information which (a) is publicly accessible or subsequently became publicly accessible or was already known to the other party at the time of the conclusion of the Agreement; (b) was independently and autonomously developed by the other party; (c) was disclosed to the other party by a third party who is not subject to a confidentiality obligation, or (d) must be disclosed due to statutory provisions or official or court orders (in this case, the party concerned shall be informed thereof without undue delay).

Data Protection and Information Security:

  1. The Contractor processes personal data provided in connection with setting up an account in relation to the users of the Software (name, first name, e-mail address, telephone number, password) and personal data relating to the use of the Software (log files). These personal data are processed by the Contractor as the controller in order to enable the users to use the Software. With regard to the rights of the persons concerned and other information duties in this respect, reference is made to the Privacy Policy on the Contractor's website.
  2. The Contractor shall be entitled to access the Customer’s account of Software in order to verify compliance with these GTC, including the remuneration, by the Customer; to make diagnoses and analyses and to adjust and optimize the settings of the Software in order to improve the performance and/or security of the Software, provided that these adjustments do not have a negative impact on the use of the Software by the Customer. Furthermore, the Contractor is entitled to collect system/metadata about the use of the Software in order to use it in the context of identifying and correcting potential defects and errors in the Software, to produce statistical analyses and to support and optimize the development of the Software.
  3. In the course of using the Software, the Customer processes personal data. The Customer is the controller of such personal data and the Contractor is a data processor. Such data processing is subject to the Data Processing Agreement, which is available at www.tracify.ai/legal and which is expressly incorporated into these GTC and the Agreement.

Term:

  1. Unless otherwise agreed, the initial term of the respective Agreement shall be six months. Unless otherwise agreed, the term of the Agreement shall be extended by further periods of one month each at a time unless one of the parties has terminated the Agreement in writing with two weeks' notice to the end of the respective calendar month.
  2. The Agreement may be terminated by either party at any time in the event of a material breach of contract by the respective other party if the breach of contract is not cured within 30 days. This period shall commence from the date of delivery of the written notice of the material breach of contract.
  3. Either party may terminate the Agreement at any time without notice if the other party goes into liquidation or an application for insolvency has been filed and not withdrawn within four weeks from the filing of the application.

Trial Period:

Within the first month of the initial term, the Customer may terminate the Agreement at any time by written notice effective at the end of the first month if the use of Tracify does not result in an increase in the data quality and performance of the online marketing measures. In this case, only the costs for the setup, if any, will be invoiced, no further costs will be incurred in this case.

Miscellaneous:

  1. This Agreement shall be governed by the substantive law of the Federal Republic of Germany. In the event of any conflicts arising from this Agreement, the parties undertake to first reach an amicable settlement. Should this not be possible, the parties agree already now on Munich as general place of jurisdiction.
  2. The Contractor shall have the right to publicly state the fact that the Customer uses the Software or is its customer and to use the Customer's name and logo for this purpose in its marketing materials, including on the Internet on its website and/or on its social media pages. Any other use of the Customer's name or logo shall require the Customer's prior consent.
  3. Ancillary agreements must be made in writing. Should individual parts of this Agreement be invalid, this shall not affect the validity of the remaining provisions of this Agreement. All notices under this Agreement shall be in writing and shall become effective upon first delivery.
  4. The Contractor shall be entitled to assign its rights and obligations under this Agreement to a third party (Assignment), if the Assignment does not impair serious interests of the Customer, for example if the third party does not provide sufficient guarantee for the performance of the contractual obligations. In the event of such an Assignment, the Contractor shall inform the Customer electronically with reasonable notice in advance about the Assignment and the new contractual partner and shall grant the Customer a right of objection in the event that serious interests of the Customer could be impaired.
  5. The Contractor may make changes to these GTC if these become necessary due to changed circumstances, for example in the event of significant changes in legislation or case law, the relevant market and business environment or due to technical developments and if the changes are reasonable for the Customer. The Contractor shall inform the Customer of the changes in electronic form within a reasonable period of time, at least one month, before the changes come into force. The Customer shall be entitled to object to such changes within 14 days after receipt of the change notification. In the event of an objection by the Customer, the Contractor shall have the right to terminate the contractual relationship extraordinarily without observing a notice period. If the Customer does not object, its consent shall be deemed to have been granted after expiry of the above-mentioned periods. The Contractor shall expressly point out the duration of the period and the significance of its expiry without result when announcing the changes to these GTC.

Version 1.02 - 27-01-2022