These General Terms and Conditions ("GTC") apply to the services of Adtriba GmbH, Veilchenweg 26b, 22529 Hamburg, Germany (also referred to as "we" or "Adtriba") provided to client (hereinafter "Client" or "you"). General terms and conditions of the Client shall not apply unless we expressly agree to their application. With our services and our GTC we exclusively address entrepreneurs in the sense of § 14 BGB (German Civil Code).
If you have concluded a License Agreement with us for the provision of Services or have placed your order via our order process including the subsequent order confirmation (collectively hereinafter also referred to as the "Agreement"), you acquire the following services & rights subject to any special agreements in the License Agreement, in your order or in the order/order confirmation.
§ 1 Object of Agreement
Adtriba provides a SaaS Solution for the holistic analysis, evaluation and optimization of marketing (hereinafter also referred to collectively as "Services"). The Services under this Agreement may include the components listed below. An overview of our Services can be found in the Service Description or in the Agreement. The concrete service components that we provide in the contractual relationship with you result from the License Agreement, your order or the order/order confirmation.
If we process personal data on your behalf within the framework of the contractual relationship with you, this processing shall be carried out on the basis of the Data Processing Agreement pursuant to Art. 28 of the General Data Protection Regulation (“DPA”), which shall apply immediately when the Agreement becomes effective. The applicable DPA is available on our website at https://www.adtriba.com/service-description-dpa or can be found in the contract agreement.
Software- / SaaS Services
- The Software is a SaaS (Software as a Service) solution (hereinafter also "Software", "Software Services" or "SaaS Services").
- An overview of our entire service portfolio can be found in the Service Description or in the License Agreement.
- Due to the flexible software architecture and a flexible license model, the Software can be individually adapted to the needs of each Client and its respective IT infrastructure.
- We make our Software Services available to you within the framework of a "subscription model", i.e. in legal terms as rented property for the duration of our contractual relationship.
- The specific service components that we provide in the contractual relationship with you result from the License Agreement, your order, or the order/order confirmation.
In addition to SaaS Services, we offer Project Services such as workshops, customizing or consulting services in connection with the use of our Software. If, for example, you require individual support in the use of our Software, this is possible via an individual agreement on service content and remuneration. For the provision of Project Services, our efforts are billed on the basis of the number of person-days incurred or by the hour.
Web- & Serverhosting
- We also provide Web & Server Hosting Services in relation to our SaaS Services. Our Web & Server Hosting Services include in particular the provision of an IT environment for our Software. The IT environment is created within one or more servers. These servers are located in rented data centers. They may also consist of virtual private servers or be rented from professional hosting providers.
- As part of our Web & Server Hosting Services, we provide you with a storage space of the size you have booked on our server to store your data. If the storage space is no longer sufficient, you can reorder corresponding contingents subject to availability.
- We will continue to ensure that your stored data can be accessed via the Internet. You remain the sole owner of the data and may demand that it be returned to you at any time. You are not entitled to transfer your storage space to a third party for use.
- Furthermore, we offer supplementary Support Services in relation to our SaaS Services. These Support Services are governed by the provisions of our Service Description. Standard email support services are included in the respective price model. Professional Support Services shall be charged at the price notified in each case on a time and material basis.
- The specific service components of the Support Services that we provide in the contractual relationship with you result from the License Agreement, your order or the order/order confirmation.
- You can reach us as follows:
- E-mail support around the clock with a response Monday through Friday from 09:00 - 17:00 at firstname.lastname@example.org.
§ 2 Remuneration
- You will generally purchase our Services under the conditions of the selected price model or according to the conditions of the offer prepared individually for you or the provisions of the License Agreement.
- We generally charge for our Project Services and Professional Service Support Services on a time and material basis.
- Any remuneration shall be subject to value added tax at the statutory rate applicable at the time and place of performance of the Service.
- The remuneration for the Services to be provided by us is to be paid by you in advance for the corresponding contractual period. If a monthly payment is desired, the remuneration may be increased by the amount specified in the price model or in the offer or in the License Agreement. We are also entitled to invoice you for the respective remuneration for up to 12 months in advance.
- Our invoices shall become due upon receipt by you and shall be paid without deductions within fourteen calendar days to our account specified in the invoice.
- Travel costs and expenses shall be reimbursed separately.
- The contractually agreed price shall be based on the adspend also specified. You are independently responsible for the assessment and payment of the adspend. We reserve the right to renegotiate the pricing if the adspend is exceeded by at least 25%.
- The prices stated in the offer or in the License Agreement entitle you to use our Software for the domains also stated in the offer or in the License Agreement. The addition of further domains is subject to separate payment.
- We have the right to increase our prices by up to 10 percent per calendar year if the prices of our service providers increase, if this is necessary to compensate for inflationary price changes, if the consumer price index increases accordingly or in the event that we wish to price our business model differently. Price increases will of course be communicated to you in good time in advance so that you can agree to them or reject them. If you do not agree with a price increase, we will try to find a solution in joint consultations. If no solution is found, each Party has the right to terminate this Agreement with a notice period of 1 month from the failure of the negotiations.
§ 3 Term & Termination
- The Agreement for the Software shall be concluded for the term selected in the offer, in the License Agreement or in the order process, and otherwise and in the absence of concrete specifications for the standard term of one year from the conclusion of the Agreement ("Basic Term").
- Termination is possible at any time. The notice period for both Parties is one month to the end of the term. The termination can be made in text form. If the Agreement is not terminated, it will be extended by the duration of the Basic Term.
- An upgrade of the selected price model or an extension of the booked Services/features is possible at any time with immediate effect. The reduction of the number of users or the downgrading of a price model as well as the discontinuation of individual features are possible at any time with effect from the beginning of a new contract period. A refund of the costs paid/to be paid for the current contract period shall not be made.
- When the termination of the Agreement takes effect, access to our services will be blocked for you and your users. You can export the content and data processed with our Services until the termination takes effect. Thereafter, we will completely delete your access as well as any of your content and data.
- The right to extraordinary termination of this Agreement for good cause remains unaffected.
§ 4 Principles of our Services
- With our Software and its functions, we merely provide you with a technical basis for the purposes to be depicted herewith by you within the limits of the purchased Services (see in particular the Service Description). We assume no responsibility for the actions performed with our Software or for the content and data processed with our Software. All actions performed and content and data processed by you with our Software are governed exclusively by the legal regulations, agreements and contracts that you have with your customers, partners, employees, etc., with whom you use our Software or for whom you use our Software.
- The provisions of German Rental Law apply to the use of our Software. Maintenance measures such as updates, patches, hotfixes are part of our Service. Further support will be offered upon corresponding agreement. Beyond the maintenance measures, the statutory rental defect warranty law shall apply.
- Adjustments, changes and additions to the Software as well as measures that serve to determine and remedy malfunctions will only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons. Major maintenance work that could lead to a malfunction of the Software will generally be performed outside normal business hours.
- The availability of the Software under this Agreement shall be 98.5% on a monthly average. Availability will not be impaired or interrupted for more than two calendar days in succession.
- You may not transfer our Services to third parties for commercial use.
- We shall be entitled to have our Services rendered by third parties and subcontractors.
- We reserve the right to change or adapt our Services as well as the documents and appendices relating thereto, taking into account your interests, provided that we do not thereby breach our contractually assumed main contractual obligations towards you. We will only make substantial modifications and adjustments that negatively change the contractual relationship with you with your consent. If such an agreement is not reached and we have to make the corresponding modification or adjustment because we change our business model or this is necessary for technical reasons, both parties have the right to terminate this Agreement extraordinarily.
- In the event of force majeure, we shall be released from our obligation to provide the Services for the corresponding duration if it is actually not possible for us to provide the Services. Force majeure is defined as fire, explosion, flood, war, blockade, embargo, pandemic and industrial action for which we or a subcontractor are not responsible.
- You are responsible for the actions of your users and are liable for them as for your own actions.
- Links or functionality in our Software may take you to third party websites and software that are not operated by us and for which we are not responsible. Such links or functionalities are either clearly marked or recognizable by a change in the address line of the browser or a change in the user interface.
- When using our Software, you are prohibited from:
- violate third party property rights such as trademarks, copyrights and rights to a name,
- harass other clients and third parties,
- use documents, files, third party IT systems and data in connection with our services that contain
- malicious code or viruses,
- use mechanisms, software and scripts that go beyond the functionalities and interfaces provided, in
- particular if this blocks, modifies, copies or overwrites our Services, as well as
- interfere with our services by altering data (§ 303a German Criminal Code - StGB), computer sabotage (§ 303b StGB), falsification of data relevant to evidence (§ 269, 270 StGB), suppression of data relevant to evidence (§ 274 StGB), computer fraud (§ 263a StGB), spying out data (§ 202a StGB), interception of data (§ 202b StGB) or other criminal acts.
§ 5 Cooperation Obligations
In particular, you shall provide us with the following additional services and cooperation free of charge:
- If necessary: Granting of necessary rights to use third party software, in particular databases, server operating systems and applications.
- If necessary: Creation of backups of the IT system and other IT components.
- Reports of material defects, defects of title and malfunctions must include a description of the problem (e.g. with screenshots, anonymized log files).
- If necessary: Notification of the guidelines applicable at your company for remote access to your IT system.
- If necessary: Provision of test cases, test data and test environments.
- In the event of security-relevant updates, we reserve the right to adjust our services at short notice. Any resulting adjustments to your IT systems must be made by you. If required, we will provide you with support in this regard.
- Independent and responsible integration of the Software (including interface, if necessary) into the Client’s existing IT system.
§ 6 General Liability
- Subject to separate provisions in the Agreement or in these GTC, in particular in §§ 6 and 7, we shall be liable for direct property damage and financial loss caused by us, our legal representatives, vicarious agents and the subcontractors engaged by us up to EUR 100,000 per damage event, up to a maximum of EUR 200,000 per year of the contract term, irrespective of the number of damage events.
- In the event of simple negligence, our liability shall be limited to the foreseeable damage typical for the Agreement. Outside of the breach of essential contractual obligations, our liability for compensation for indirect material damage and financial loss, in particular loss of profit, shall be completely excluded in the event of simple negligence. In case of force majeure as well as in case of gratuitous use of our services, our liability is excluded altogether in case of simple negligence. Material contractual obligations are those whose fulfillment is essential for the proper execution of the Agreement and whose fulfillment may be relied upon.
- We shall be liable to an unlimited extent in the event of injury to life, limb or health as well as in the event of intentional or fraudulent conduct. The same shall apply in the event of the written assumption of a guarantee for the quality or durability of a service to be provided by us.
- Our liability under the German Product Liability Act shall remain unaffected.
- You shall be liable for the actions of your employees, legal representatives, vicarious agents and any other users of our Services as for your own actions. Furthermore, within the scope of your responsibility (see in particular § 4 (1) of these GTC), you shall indemnify us upon first request against any liability claims by third parties due to damage caused to third parties and other affected parties by your use of our Services.
§ 7 Warranty
- In the event of material defects and defects of title, the statutory provisions shall apply subject to the provisions of this clause. § 377 of the German Commercial Code (HGB) shall apply. All claims for defects shall be subject to the condition of your immediate notification of defects pursuant to § 377 (1) and (3) HGB. Your notification of defects must be made in writing (electronic form is excluded).
- In the event of material defects, you shall first have the right, at our discretion, to free rectification or new delivery (hereinafter "Subsequent Performance"). If the defect cannot be remedied after two attempts at Subsequent Performance, it shall be examined whether your interests can be met by an alternative solution before any termination or withdrawal.
- In the case of rent, strict liability for damages for defects existing at the time of transfer is excluded under § 536a (1) of the German Civil Code (BGB).
- Our Services shall be provided to you free of third party rights. Please inform us immediately in text form if you become aware of third party rights to our services.
- At our request, you shall provide us with the defense against claims asserted by third parties, provide us with all information necessary for this purpose, give us explanations and grant us powers. In return, we shall indemnify you against claims for payment and damages based on the rights of third parties.
- If our Services are actually encumbered with the rights of third parties, we shall be entitled, at our discretion, to,
- eliminate the rights of third parties or their assertion (e.g. by paying license fees), or
- to modify our Services in such a way that the rights of third parties are no longer infringed.
- Claims for defects shall not apply if you have made changes to the Services without our prior consent or if the Services are used by you for a purpose not covered by this Agreement and this action is solely responsible for the occurrence of the defect.
- All claims based on defects shall become statute-barred after 12 months, unless they are already limited or excluded in accordance with the aforementioned provisions.
§ 8 License Terms
Software and General
- You shall receive a simple, non-exclusive right to use our Services, which shall be limited in time to the term of the Agreement and unlimited in territory.
- Your majority-owned group companies shall be equally entitled to use the Software, provided this is contractually agreed and reflected accordingly in the remuneration. An independent authorization to sublicense or otherwise transfer your rights of use is not associated with this. This right of use shall end if the group company no longer meets the requirements of an affiliated company (e.g. within the meaning of §§ 15 et seq. of the German Stock Corporation Act (AktG)).
- You shall not be entitled to exhibit, publicly reproduce, in particular make available to the public, edit, redesign, translate, decompile or otherwise transform the Software. Your rights under § 69d (3), 69e German Copyright Law (UrhG) shall remain unaffected.
- We shall be entitled to use our Services, including new releases, as well as any other general know-how, experience, methods and procedures developed in connection with the Agreement for other purposes (provision to third parties, as open source software, etc.).
- Unless otherwise agreed, test and demo licenses shall be limited to a term of up to 6 months.
Open Source Software
- We grant you such rights to open source software contained in our Services that can be transferred to you under the license terms applicable to us. You are permitted to use our services exclusively within the scope of these license terms. We do not assume any warranty or liability for any use beyond this.
§ 9 Transfer to Third Parties
- We shall be entitled to transfer the Agreement to a legal successor or a group company affiliated with us. We will inform you of this in text form at least two months before the planned transfer.
- Any transfer of the Agreement to a third party shall require your prior consent. In the event of your objection, the Agreement will continue unchanged. The objection shall be deemed good cause for extraordinary termination of the Agreement by us.
§ 10 Confidentiality
- In the course of the cooperation, both Parties shall gain knowledge of trade secrets of the other Party or third Parties. A trade secret is information which is neither generally known nor readily accessible to persons who normally handle this type of information, is therefore of economic value and is therefore subject to appropriate secrecy measures (cf. § 2 German Trade Secret Act (GeschGehG)). Furthermore, a trade secret is information which is marked as a trade secret, which is protected by industrial property rights or copyright, which is covered by banking secrecy or data protection and for which there is a justified interest in secrecy. A trade secret shall not be information which is known to the respective other Party prior to disclosure, which has become known to the public after disclosure without the involvement of the disclosed Party, which the disclosed Party has learned through an authorized third party and which the disclosed Party has developed itself.
- The Receiving Party, as well as all those who come into contact with trade secrets as intended, shall be obliged to treat the trade secrets as strictly confidential and to use them or disclose them to third parties and employees only if this is necessary in connection with the business purpose. In all other respects, the receiving Party shall protect the trade secrets from disclosure to third parties.
- Objects as well as files or other incorporeal objects on which trade secrets are located shall be deleted or surrendered to the disclosing Party without undue delay upon request of the disclosing Party or upon termination of the contractual relationship at the latest.
§ 11 Final Provisions
- The assignment of individual claims arising from this Agreement shall require the prior consent of the respective other Party in text form. The assignment of monetary claims is excluded from this.
- The entire contractual relationship between the Parties shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
- The place of jurisdiction for all disputes arising from the contractual relationship shall be the competent court at our registered office.
- Amendments and supplements to the GTC as well as to the entire Agreement existing between us must be made in text form to be effective. Amendments and supplements to the Agreement which are (have to be) made by us due to changed legal or technical requirements for our provision of services and which do not have a negative impact on the services to which you are entitled shall become effective if you do not object to an amendment in text form within one month after receipt of a notice of amendment and we have informed you in advance of your right to object. If you object to the change, the Agreement shall continue to apply unchanged and we shall be entitled to extraordinary termination of the Agreement with one month's notice to the end of the next calendar month. Changes and amendments to the Agreement that we wish to make due to changes in performance, remuneration or other commercial or operational requirements will only become effective if you expressly consent to them. This consent can be given by clicking a consent button in the change notice (email or pop-up as part of using our services) or in any other simple & transparent way we provide for you. The text form also applies to an amendment of this form clause. The priority of individual ancillary agreements remains unaffected. The aforementioned deadlines do not apply and there is only a right to information about changes to the Agreement, provided that the changes are necessary to avert an unforeseen and imminent danger, to protect you from fraud, malware, spam, violations of data protection or other cybersecurity risks.
- If one of the provisions of the Agreement is invalid or the Agreement contains a loophole that requires regulation, this shall not affect the validity of the remaining or loophole provisions. In this case, the parties undertake to replace or complete the invalid or incomplete provisions with provisions that come closest in economic terms to the invalid or incomplete provisions.