General Terms and Conditions of etracker GmbH, Version 2.05, 1. January 2012

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1. Scope

These general terms and conditions apply for all contracts and service agreements between etracker GmbH, Erste Brunnenstraße 1, 20459 Hamburg, Germany (hereafter called “etracker”) and its customers regarding the use of etracker products and services which etracker provides its customers.
For individual services such as software development, consultation and training are subject to etracker’s separately included General Contractual Conditions for Individual Services from etracker. They also apply vis-à-vis companies in the relevant last included version and also for future contracts between etracker and the customer even if they are not mentioned again in later a subsequent contract, orders or services.
etracker hereby contests any conflicting or deviating terms and conditions. Any provisions that deviate from these terms and conditions will only become contractually effective if agreed explicitly with etracker.
etracker offers different services and service levels. Individual offers may include supplementary conditions and license provisions that supersede the provisions of these general terms and conditions.

2. Definitions

For the purposes of these general terms and conditions the following definitions apply:

• etracker account is the customer’s virtual access account for a given service contract. The etracker account is used for accounting purposes, for the regulation of service levels and contract models, and for the customer’s personal settings;
• etracker services are the total services provided or products made available by etracker as part of the service contract in accordance with the relevant service description for the given service level;
• Registration is the electronic registration or written order by the customer for the given service contract;
• TRACKLET is a section of code (“sniplet”) that is integrated into the customer’s Web page, enabling the collection of information as required by the etracker products and services or the provision of other services; the term TRACKLET according to these general terms and conditions also includes the sniplet used for the integration of the "Visitor Voice" service;
• etracker software is the software provided to the customer by etracker as part of its contractual relationship (whether as a download, on disk, or pre-installed on a server or client computer system); the TRACKLET is part of the etracker software;
• Customer is the company or consumer with whom etracker maintains a business connection;
• Personal data refers to specific data concerning the personal or business circumstances of a specific or specifiable natural person;
• Enterprise refers to natural persons, corporate bodies or private companies with legal capacity that enter into a contract as part of their business or professional activities;
• Consumer refers to natural persons that enter into a contract with etracker where no connection to business or professional activities can be assumed.

3. Conclusion of Contract

3.1 Subject Matter of Contract

All offers made by etracker are without engagement. The subject matter of the contract is the etracker products and services as offered in the current product description at the time of registration by the customer.

3.2 Contract Conclusion Process

By registering with etracker the customer represents that he/she intends to use the etracker services and/or the etracker software (contract offer by the customer).

If a customer registers electronically, etracker will notify the customer about the new registration or order. The confirmation of access does not represent a guaranteed acceptance of the registration or order. The confirmation of access can, however, be connected with the notification of acceptance.

The contract between the customer and etracker becomes effective with written acceptance of the contract offer by etracker or on receipt of the identification data by the customer. etracker is not obliged to accept contract offers. Registered customers can also book additional services offered by etracker via the etracker account or terminate them in written form by taking the respectively agreed notice period into account . The contract for such additional services becomes effective upon confirmation by etracker or upon provision of the booked service within 5 working days following the customer’s request for the provision of said service.

3.3 Registration Data

The customer is obliged to provide correct data during registration and to keep this data up to date at all times. Should any part of this data become invalid during the period of service, the customer is required to update or correct the relevant for his/her etracker account data immediately.

3.4 Contractual service

etracker owes the respective service covered by contract in accordance with the respective service description in place upon conclusion of the contract. etracker owes, if not otherwise specified in the respective service description, the provision of the etracker services with a minimum availability level of 99% per year. In case of unforeseeable circumstances etracker has the right to suspend etracker services for the purposes of maintenance or repair, should this be required for the stabile and secure operation of services. A guarantee in the legal sense will only be provided by etracker on the basis of a written guarantee agreement employing the designation “Guarantee”.

4. Prices and Terms of Payment

4.1. Prices

The prices for services utilized by the customer are based on the relevant order forms / offers and the respective pricelists as published on the etracker website (www.etracker.com). etracker accepts the payment methods displayed in the customer’s etracker account. etracker is entitled to decline certain payment methods in specific cases, provided etracker has reasonable grounds for doing so. Payment by check is subject to prior individual agreement with etracker.

4.2. Invoicing

Customer invoicing is carried out in electronic form, unless agreed otherwise with the customer. The invoice is accessed via the customer’s etracker account.

4.3. Payment Dates and Delays

Payments for a given service period are to be made in advance without deductions. Fees dependant on the use of services are invoiced on a monthly basis subsequent to the provision of services. The customer can access invoices for variable fees dependent on service use (insofar as etracker has charged such fees) via his/her etracker account as of the 1st of a given calendar month for the services provided the previous month. Payment of invoices is due within 14 days of the invoice date. Not making use of provided services does not free the customer from the obligation to settle due service payments.

If payment is delayed considerably, etracker has the right to suspend the provision of services, in particular the customer’s access to the etracker services, at the customer’s cost until all due payments are settled. In the case of suspended services, the customer’s obligation to settle ongoing payments remains in place.

After failure to adhere to a reasonable deadline etracker has the right to terminate the contract by extraordinary notice.

In the case of return debit notes and unpayed checks the customer must reimburse etracker for ensuing costs to the degree in which he/she is responsible for the underlying event.

Furthergoing claims and rights on the part of etracker remain unaffected.

4.4. Offsetting

etracker’s claims may only be offset against claims that are undisputed or legally determined. The exercise of a right of retention is permissible only in as far as the counterclaim is based on the same contractual relationship.

4.5. Objections

Objections to the amount billed must be submitted to etracker in writing (see address above), by e-mail to billing@etracker.com or by fax to +49 40 5556-5959 within six weeks upon receipt of the invoice.

If no objection is submitted by the customer within six weeks after the invoice date, the invoice is deemed as accepted. etracker will inform the customer in the invoice about the consequences of failing to submit a timely objection. Legal claims on the part of the customer in the case of objections after said deadline remain unaffected.

4.6. Tariff Changes/Upgrades

The customer can upgrade to a higher etracker product/tariff at any time.. The customer can select a more extensive service package of the product used by him at any one time. The tariff change in the customer’s etracker account is binding and is essentially equivalent to concluding a new contract based on the relevant conditions for the chosen service level, in particular the duration of the new contract which begins as of the tariff change. Any unused service payments will be transferred as a partial payment of the service charges for the new contract. A downgrade (change to a less comprehensive service package) is not possible during a current contract period.

5. etracker-Software

The customer is able to convince himself or herself of the suitability and usability of etracker services for his or her intents and purposes on the basis of a trial period, if granted, or on the basis of the live demo of the features of etracker services and the product description provided by etracker on its website at www.etracker.com. The customer acknowledges that for technical reasons slight inaccuracies and deviations may occur in connection with the analysis of usage data based on currently available methods and technologies.

Before integrating the etracker services or installing the etracker software, the customer is obliged to backup the data on the installation computer or server and the website, to which the etracker services are to be added. If the customer determines that an error has occurred during or after the integration of the etracker services or the installation of the etracker software, he/she is required to cancel or undo the installation immediately.

6. Data Privacy and Security

6.1    Data Privacy

Data protection and data security play a particularly important role at etracker. etracker saves and uses personally identifiable data therefore only insofar as this is required for the processing of contract agreements between the customer and etracker. Personal data will not be forwarded to third parties as long as such forwarding is not necessary to provide or invoice (including debt collection) the contractual services or if there is a legal disclosure obligation. All etracker employees are obliged to keep data secret in accordance with the law.
The customer is hereby informed, in compliance with § 33.1 of the German Data Security Act, that his/her complete address, as well as certain other information provided in connection with the etracker service agreement and services, will be stored by etracker in electronic form and processed electronically for purposes occurring as a result of the agreement.

The customer is not permitted to compile the data collected by means of the etracker services with the personal data of third parties, in particular user statistics, or to use the data otherwise for the analysis of personal profiles. The customer is responsible for the permissible use of etracker functions in accordance with the relevant data privacy regulations.

The customer is required to point out the use of etracker for the collection of data in a prominent position on the websites where etracker services are used for tracking. This notification must at least correspond to the following privacy protection notice:

“This website uses etracker technology (www.etracker.de) to collect visitor behavior data. The data is collected anonymously to be used for marketing and optimization purposes.  All visitor data is saved using an anonymous user ID to aggregate a usage profile. Cookies may be used for this purpose. Cookies are small text files that are stored in the visitor’s local browser cache. Using such cookies it is possible to recognize the visitor’s browser.
The data collected via etracker technology will not be used to determine the personal identity of the website visitor or compiled with personal data pertaining to the user of the pseudonym unless agreed to separately by the person concerned. The collection and storage of data may be refused at any time with respect to subsequent services."

Refusal of the collection and storage of data can be implemented by integrating the following URL:
<a href="https://www.etracker.com/privacy?et=[etracker Secure Code]&languageId=2">Refuse data collection</a>

The placeholder [etracker Secure Code] is to be replaced with the unique account ID assigned after registration. The customer is obliged to include a notice, in the direct proximity of the privacy protection notice, pointing out the option of refusing the collection of data by means of the hyperlink shown above.
The privacy protection notice and the data storage refusal link can also be called up via the “Settings->Privacy” menu after logging in.
If etracker services are used for the collection of personal data (in particular, for the collection of IP addresses) the customer is required to inform visitors of the website clearly about this matter and – if required by the relevant data privacy regulations – to request the visitor's acceptance of this collection of personal data. Moreover, the customer must ensure that such data is deleted after its purpose has been fulfilled.

6.2    Order data processing in terms of Section 11 BDSG

In terms of Section 11 of the Federal Data Protection Law certain contractual regulations must be complied with when processing personal data on behalf of the customer (“order data processing”) in Germany. etracker offers its customers the option of concluding a written agreement governing order data processing. More information is available in the etracker account under the menu item “Data Protection”.

6.3    Data security

etracker hereby informs the customer that the privacy and security of data transmissions in open networks such as the Internet cannot be guaranteed based on the technology currently available. As a matter of course etracker has taken all the technical and organizational measures necessary according to the law to safeguard personal data saved at etracker against misuse and unauthorized access. However, it could be technically possible, under certain circumstances, for third parties to access the network security without authorization, especially for data transfers via the internet outside the etracker access area, and control communication traffic or monitor data traffic. Therefore, customers are responsible for the security and safeguarding of their own data transferred via the internet or for data that can be reached from the internet.
The customer is responsible for regularly backing up any important data in accordance with the relevant requirements. etracker is in no way liable for any loss of data, unless brought about deliberately or by gross negligence on etracker’s part.
The customer must ensure that the servers and desktop PCs connected with the etracker services are configured with the latest security provisions (e.g. virus scanners with up-to-date virus definition signatures, firewalls) and that current security updates to the operating system and application software are installed, unless the customer has a legitimate reason for not doing so.

6.4    Customer Prudence

User accounts are not transferable and must not be relinquished to third parties. The customer is obliged to take appropriate steps to prohibit access to the etracker services by unauthorized persons. Confidential data such as user names and passwords or data for direct access to the etracker statistics (direct login URL / bookmarks) must be treated confidentially and must not be disclosed to third parties under any circumstances. Any employees that have access to the passwords for etracker services must be obligated by the customer in writing to maintain confidentiality. In case of any misuse or suspected misuse the customer concerned will immediately change the existing password and will notify etracker without delay of the misuse or suspected misuse, by e-mail to abuse@etracker.com or by fax to +49 40 55 56 59-59 In the case of any use of the etracker services by unauthorized persons resulting from a breach of confidentiality, the customer is responsible for any ensuing damages.

6.5    etracker data privacy seal

During the course of the service period, the customer is entitled to use the etracker data protection seal (http://etracker.com/de/etracker-unternehmen-web-controlling-und-analyse-software/datenschutz-signet.html) and can include it on his website. This means that the customer can draw his visitors’ attention to the etracker tracking system on his website which conforms to data protection and at the same time creates trust vis-à-vis his visitors. Hereby only the provided inclusion method specified in the customer's etracker account under “configuration data protection” may be used. The seal must be removed if the customer’s website no longer meets the relevant requirements; in particular if other tracking systems which do not conform to the etracker data protection requirements are used.

7. Property Rights

etracker grants the customer, upon conclusion of the contract, the non-exclusive, non-transferable and non-sublicensible right to use the etracker services as specified in the contract. The right of use expires if the customer defaults on a payment owed to etracker.

The customer may use the data and evaluations obtained by means of the etracker software only for his/her own needs. The customer is not permitted to relinquish the use of etracker services to any third party without prior consent from etracker. Commercial utilization of the results of the etracker analyses for third parties is subject to a separate arrangement with etracker.

The customer is not allowed to

• Change, translate, decompile, disassemble or otherwise misuse or create derived works based on the etracker software or documentation; information required to achieve interoperability with other independently developed computer programs, in accordance with § 69 e of the German Copyright Act, may be purchased from etracker on request based on the respective prices.
• Transfer, lease, lend, or distribute the etracker software or services, or use them for services to or for a third party, or grant any rights to the etracker software or documentation or any other part of the etracker products to a third party in any form whatsoever, unless etracker has given its prior written consent to do so and all respective monetary and other conditions specified by etracker have been fulfilled; or
• Change, remove, or obliterate the marks, labels or notices concerning copyrights or other intellectual property rights in the etracker software or documentation or any other part of the etracker products.

Any HTML or other code provided to the customer by etracker (in particular the TRACKLET) must be used by the customer as specified without modification.

Insofar as etracker has introduced technical protection the contracted products or services (for example, firewalls or security codes), the customer is not permitted to remove or circumvent these security measures.

The intellectual property rights and any other property rights to the etracker software and etracker services remain with etracker and/or etracker’s partners and suppliers.

8. Further Rights and Obligations of the Customer

The customer is responsible for implementing any requirements for the use of the etracker services on his/her website on his/her own account and at his/her own expense. This applies in particular to network connections (Internet connections), telecom connections, hardware and software (particularly up-to-date and compatible browser technologies) as well as adequate trained personnel. The installation and integration of the etracker services, in particular the integration of the TRACKLET in the customer’s website(s), is carried out by the customer.

The customer is not permitted to generate automated report queries via other means than those released by etracker for this purpose, e.g. via scripts or tools, without explicit consent from etracker.

Business customers are required to name a responsible contact person during registration who will be available at short notice during regular working hours (weekdays 10:00 a.m. to 6:00 p.m.) for questions concerning the cooperation with etracker.

etracker will provide important information to the customer via the message function in the customer’s etracker account or by email. The customer is therefore required to check for new messages regularly in his/her etracker account or in the e-mail account provided during registration.

9. Warranty

The customer will immediately notify etracker in writing of any deficiencies and will support etracker in the analysis and elimination of errors in an adequate and reasonable way by providing exact error descriptions.

10. Other Liabilities

10.1    Liability on the Part of etracker

etracker is not liable for any disturbances, limitations or service obstructions nor for any interruptions or malfunctions of the etracker services based on circumstances beyond etracker’s realm of influence.
etracker is fully liable for damages that etracker has to account for as a result of intent, gross negligence or the breach of an essential contractual obligation (cardinal obligation). Essential contractual obligations are those that are required to be fulfilled to achieve the aim of the contract and those on whose compliance the customer, as contractual partner, can trust upon regularly.
Compensation claims (with the exception of warranty claims) based on simple negligence on the part of etracker are subject to a limitation period of one year after occurrence of the damage. In cases of slight negligence, etracker is fully liable only for harm to life and limb or health. If the breach of an essential contractual obligation is not based on intent or gross negligence, etracker’s liability is limited to typical damages that were reasonably foreseeable at the time the contract was concluded; however, to the maximum amount of the annual overall remuneration which the customer pays for the product substantiating the liability up until the time of the entry of the damage.
Liability for any other damages is excluded, subject to the provisions of the German product liability laws and any contractual guarantees. A liability vis-à-vis commercial customers for lost income is excluded.
The aforementioned liability regulations also apply analogously as they pertain to the bodies, employees and authorized agents of etracker.

10.2    Infringements by the Customer

The customer pledges to abide by all applicable laws and contract provisions when using the etracker services. In particular, the customer will not impinge on any rights of third parties (e.g. personal rights, copyrights, trademark rights or other property rights, etc.) and will adhere to the applicable penal laws and regulations for the protection of minors.
The customer will indemnify and hold etracker harmless from damages resulting from any violation of rights for which the customer is responsible. This indemnification also includes the costs of legal defence up to a reasonable amount, at the most the amount specified by the applicable legal regulations of attorney fees and court costs.

11. Contract Period and Termination

The customer selects a contract period (service period) when concluding the contract. The contract may be terminated by either party by giving notice at least four weeks before the end of the selected contract period. If the contract is not terminated, it is automatically extended by another period of the same duration as selected contract period.

If the customer changes the contract period, this change applies as of the end of the contract period during which the change is made. It is not possible to shorten a current (active) contract period. A payment method that diverges from the service period (for example monthly) does not change the service period

Termination of the contract must be carried out via the customer’s etracker account, or in writing.

The right to extraordinary termination for cause remains unaffected.  etracker in particular has the right to an extraordinary termination (alongside other termination rights arising from these business conditions) in case of,

• the customer has made or makes false statements upon registration or order of services, or during the duration of the contract;
• the customer has not settled due payments, after failure to adhere to an appointed deadline (cf. section 3.3 );
• the customer has made changes to or otherwise modified the etracker software or other services associated with the contract;
• the customer publishes content on his/her website that is racist or pornographic, glorifies or trivializes violence, or is otherwise illegal or immoral;
• the customer impinges on the property rights of etracker or etracker’s contract partners;
• the customer breaches etracker’s general terms and conditions or any essential contractual obligations in a serious way.

Prepaid services will be reimbursed only in cases where etracker is responsible for the extraordinary termination.

Upon termination of the contract, etracker has the right to permanently delete all the data collected during the duration of services.

After the contract has ended the customer is no longer permitted to make use of the etracker software or other services associated with the contract. Any hardware and/or software provided to the customer must be returned to etracker without delay when the contract ends. The customer is required to delete any etracker software installed on his/her own computer systems or the computer systems of any third parties on his/her behalf and to remove any etracker code (in particular the TRACKLET) from his/her website. If the customer does not remove the TRACKLET from his/her website, a notice referring to etracker will appear on the pages that still contain the TRACKLET although the contract with etracker has ended.

12. Special provisions for etracker Lite products

In variance to the above General Terms and Conditions the following provisions apply for the use of etracker Lite products with the exception of the Lite+ products, which are subject to payment:

12.1 Subject

The etracker Lite products are made available to the customer free of charge.

12.2 Evaluations

The customer declares themselves to be in agreement that etracker may use the etracker Lite products to collect information in an anonymous form for its own purposes and to save and process this information in order to prepare analyses and evaluations of website use and usage behaviour. etracker is entitled to utilise the results of these evaluations for its own purposes and for third parties. The pre-condition for such utilisation by etracker is that the utilised data:

1. Does not contain any personal data.
2. Does not allow any identification of the origin of the data (this includes the customer’s website and the identity of the customer themselves).

Specifically no data will be processed or published that would allow the etracker Lite customer, their website or their website users to be recognised.

12.3 Discontinuation and amendments

etracker reserves the right to discontinue the etracker Lite products at any time, restrict them with reference to the extent of their function or to amend them.