AVB - General Terms and Conditions of Contract

General Terms and Conditions of Contract for Individual Services of etracker GmbH

1 Scope of application

(1) These General Terms and Conditions of Contract (GTC) apply in their respective valid version to all individually provided services of etracker GmbH, Erste Brunnenstraße 1, 20459 Hamburg (hereinafter referred to as “etracker” or “provider” or “we”), regardless of their content and legal nature. They also apply in the most recently included version for future contracts between etracker and the customer if they are no longer mentioned in later contracts or services. Deviating conditions and contractual offers of the customer are hereby rejected.

(2) “Individually provided services” are services that etracker provides taking into account the individual requirements of the customer, e.g. software development or consulting services. For etracker’s standard services, in particular etracker analytics, etracker Optimiser and etracker On-Premise products, the General Terms and Conditions (GTC) available at https://www.etracker.com/agb/ apply.

(3) These contractual terms and conditions only apply to entrepreneurs, legal entities under public law and special funds under public law.

2 Conclusion of contract and amendments

(1) Offers from etracker are subject to change and non-binding. The contract with etracker is concluded by means of a written or electronic order confirmation from etracker.

(2) etracker owes the services agreed with the customer in each case. Subject to a separate agreement, etracker does not under any circumstances owe the achievement of a specific economic success that goes beyond the actual contractual service.

(3) Changes to the agreed service require the consent of etracker and the agreement in text form (e-mail, letter) to be effective.

(4) Insofar as the realization of a change requested by the customer affects the terms of service, etracker can demand an appropriate adjustment of the remuneration and the postponement of any agreed deadlines.

(5) etracker provides its services for the customer. Unless expressly agreed otherwise, etracker accepts no liability towards third parties.

3 Special conditions for consulting services

(1) The provisions of this § 3 apply to the provision of consulting services by etracker. Consulting services include advising the customer and supporting the customer in the conception and implementation of measures, particularly in the area of usage analysis and user-optimized design of online offerings.

(2) Consulting services are provided exclusively on the basis of the information provided by the customer. Insofar as third parties are used for the consulting services and the collection of necessary data at the request of the customer, these third parties shall be used in the name and on behalf of the customer, unless otherwise agreed.

(3) etracker shall be responsible for the professional execution of the consulting services, taking into account the requirements set out in the order in accordance with Art. § 2 of these AVB and no specific result of the consultation. After the order has been placed, requirements can only be included as part of an amendment agreement.

(4) If the customer books a consulting package or in any other form an entirety of consulting services, the respective individual agreement shall specify a period in which the service can be called off (call-off period). If the customer does not call off the agreed service in the agreed quantity within the agreed period, etracker will allow the customer to call off the remainder of the service not called off (remaining service) within a grace period of one month, beginning with the expiry of the call-off period. The customer is responsible for the appropriate use of the residual performance. Upon expiry of the grace period, the uncalled services shall lapse, to the exclusion of any claims for reimbursement of remuneration paid in advance and to the exclusion of any reduction in remuneration due to the failure to call.

4 Special conditions for the creation of software

(1) The provisions of this § 4 apply to the creation and adaptation of software for the customer by etracker.

(2) etracker appoints a project manager and the customer appoints a responsible contact person. They can make decisions or bring them about immediately. The project manager should record decisions in text form. The contact person is available to etracker for necessary information and coordination.

(3) Subject to a separate agreement, etracker is not obliged to analyze the customer’s existing data, hardware and software and other system environment and in this respect is dependent on the customer providing complete information. etracker takes into account the customer’s existing requirements, insofar as they become part of the service description in text form.

(4) Insofar as the customer’s requirements do not yet result from the task definition according to the contract and a sufficient service description cannot be created as a result, etracker shall detail the service requirements with the support of the customer, create a specification for them and submit them to the customer for approval. The customer shall approve them in text form within 14 days if they are in accordance with the contract. The specification is a binding requirement for further work.

(5) The customer shall inform etracker in text form of any change requests regarding software services. At the customer’s request, etracker will support the customer in formulating the change request for a fee. For the examination of change requests, etracker is entitled to reasonable remuneration in accordance with the remuneration rates agreed with the customer or, in the absence of a relevant agreement, in accordance with etracker’s current list prices.

(6) etracker is not responsible for the installation or implementation of the software if this has not been agreed with the customer. The customer shall ensure that expert personnel are available to use the software at the latest at the time of installation. If no fixed handover date has been agreed, etracker shall announce the provision of the service result with a reasonable period of notice (at least five days, if possible with regard to the deadline density of the respective project).

(7) etracker only owes the transfer or deposit of the source code or consent to deposit if and insofar as this has been agreed in text form.

5 Billing

(1) If services are invoiced on a time and material basis, etracker will invoice the customer on a monthly basis after the service has been provided, unless otherwise agreed with the customer.

(2) Claims by etracker are due upon invoicing and are payable within 14 days without deductions. In the event of default, etracker is entitled to suspend performance until all outstanding claims have been settled in full. Further legal claims and rights of etracker remain unaffected.

(3) etracker retains ownership of the delivered service results until full payment of all current and future claims arising from the business relationship with the customer. Furthermore, etracker is entitled to offset outstanding claims against the customer in the event of default against advance payments made by the customer for other etracker services. This can shorten the term of prepaid standard products in the event of offsetting. If etracker wishes to make use of this right, etracker will inform the customer of this circumstance in the event of default and grant a reasonable grace period for payment.

(4) The customer only has the right to offset if his counterclaims are undisputed by etracker or have been legally established or result from the same contractual relationship. The customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

6 Cooperation of the customer

(1) The customer must provide etracker with all information relevant to the respective order and inform etracker in good time of any problems or changes required. etracker may consider the information provided by the customer to be correct and complete and is not obliged to investigate. Nevertheless, etracker will point this out to the customer if it detects any inaccuracies. The customer’s instructions must be issued in good time so that a reasonable implementation period remains.

(2) The customer shall only provide etracker with templates and work materials whose use by etracker in accordance with the order does not infringe the rights of third parties. In this respect, the customer shall indemnify etracker against all claims and rights of third parties. The indemnification also includes the costs of a reasonable legal defense to the extent permitted by law.

(3) The customer is obliged to create all the conditions necessary for the proper execution of the order in his sphere of operation. This applies in particular to the hardware and software required to implement the service, unless it is expressly to be provided by etracker. If etracker is to work on the customer’s premises in accordance with the agreement, the customer shall provide sufficient workstations, training rooms, presentation facilities (projector/flipchart/whiteboard) and other necessary work equipment and cooperation not to be provided by etracker in accordance with the agreement free of charge.

(4) The customer is liable for his cooperation, in particular he must check data carriers for viruses and other malware with an up-to-date, state-of-the-art virus protection program before handing them over to etracker. If the provision of the contractual service is impeded or frustrated by delayed, incomplete or defective fulfillment of the customer’s obligations to cooperate, etracker is entitled to demand reasonable compensation for the resulting additional expenses.

(5) The customer undertakes to back up data before transferring it to etracker or processing it by etracker without being asked to do so.

7 Acceptances

(1) The customer must check that the deliveries and services as well as the preliminary and intermediate products handed over to him are in accordance with the contract immediately upon receipt and must issue acceptance without delay. etracker is entitled to demand interim acceptance upon completion of individual work sections. Acceptance of a service shall be deemed to have been granted if it is not refused by the customer within 21 days of handover with a meaningful justification or if the customer uses the work result. In the case of previous interim acceptances, only the contractual conformity of the last part of the service handed over and the interaction of all parts shall be the subject of the acceptance test for the last partial service.

(2) At the request of etracker, the customer must also declare acceptance in text form.

(3) In the event of any refusal of acceptance, the obstacles to acceptance must be described in detail. Minor defects do not prevent acceptance and must be rectified by etracker within a reasonable period of time. A defect is material if its existence eliminates the suitability of the service for the agreed purpose or impairs it in such a way that this leads to noticeable additional expense for the customer.

(4) etracker is prepared to support the customer with acceptance tests for a separate fee.

8 Confidentiality

etracker undertakes to maintain confidentiality regarding business and trade secrets as well as all information of the customer designated as confidential that becomes known to etracker in connection with the execution of the contract.

9 Service disruptions

(1) The delivery or performance date or the delivery or performance period shall be The delivery period – hereinafter referred to as “delivery date” – is agreed in accordance with etracker’s expected performance capacity and is non-binding and subject to timely delivery to etracker and circumstances for which etracker is not responsible, in particular non-delivery, incorrect delivery or late delivery through no fault of etracker. Such events shall extend the delivery date accordingly, even if they occur during a delay that has already occurred. Any grace period set by the customer in this case shall also be extended by the duration of the unforeseen event. If such events lead to a delay in performance of more than one month, both the customer and etracker can withdraw from the contract – irrespective of other rights of withdrawal – if they are not responsible for the delay in delivery/performance.

(2) If the expenditure increases and the cause lies within the customer’s area of responsibility, etracker can also demand compensation for its additional expenditure.

(3) etracker shall only be in default following a reminder from the customer in text form, unless there is a transaction for delivery by a fixed date. The agreement of binding delivery dates requires express agreement in text form.

(4) If the customer withdraws from the contract in addition to asserting claims for damages caused by delay or asserts claims for damages instead of performance, he must have set etracker a reasonable grace period after the expiry of the performance period. However, etracker shall not be liable if the damage would have occurred even if the delivery date had been met.

(5) Guarantees in the legal sense are only given by etracker if a guarantee agreement is made in text form using the term “guarantee”.

(6) The customer’s claims for defects shall lapse within one year of the transfer of risk. This does not apply if the law prescribes longer periods as well as in cases of injury to life, body or health, in the case of an intentional or grossly negligent breach of duty by etracker and in the case of fraudulent concealment of a defect. The period begins at the time of the transfer of risk. The statutory provisions on suspension of expiry, suspension and recommencement of time limits remain unaffected.

(7) The parties are aware and agree that it is not possible to exclude software errors under all application conditions according to the state of the art. The customer shall only have warranty claims regarding software if reported defects are reproducible or can be demonstrated by machine-generated output. The interaction of the software provided or modified by etracker with hardware or software created by third parties or which is already in use or will be used by the customer and/or other compatibilities is only owed by etracker if this is expressly part of the contractual service.

(8) If etracker’s service has a material defect, etracker must be given two opportunities for subsequent performance within a reasonable period of time, provided that etracker has not definitively refused to remedy the defect. etracker has the right to choose between the types of subsequent performance. The defect will be remedied at the customer’s or etracker’s discretion.

(9) The customer must support etracker as far as necessary in the rectification of defects, in particular, at etracker’s request, provide the software that is the subject of the complaint as well as other information and documents similar to those required for error diagnosis, such as third-party software, memory images (“dumps”), error logs, etc. The customer must report defects in text form in a comprehensible form, stating the information useful for identifying the defect.

(10) The warranty shall lapse for performance results that the customer has changed, unless the customer proves in connection with the notification of defects that the change is not the cause of the defect.

(11) etracker may demand compensation for its expenses for the inspection of defects if a claim for defects by the customer proves to be unjustified or if additional expenses are due to the fact that the customer has changed the performance results or has not integrated them into its Internet services in accordance with etracker’s instructions.

10 Granting of rights

(1) All rights to drafts, proposals, tender documents and interim results remain with etracker, unless otherwise agreed.

(2) etracker grants the customer the rights of use to the service result (end result) required for the agreed purpose on condition that the customer pays the full remuneration. Unless otherwise agreed in text form, the remuneration shall only cover the granting of simple, non-exclusive rights of use for the intended purpose, form of use and period of use in accordance with the original order. Any further use, in particular in or on media not expressly included, in a different geographical area, in edited form (unless the editing is necessary for the agreed use) and/or in a different period of time requires an express additional granting of rights. Transfer of rights of use and sublicensing require the consent of etracker in text form. etracker expressly retains the right to continue to use the results of the service and the knowledge, methods and information gained in the course of providing the service and to disclose them to third parties while protecting the customer’s business and trade secrets. The granting of exclusive rights of use by etracker requires an express agreement in text form.

(3) In the event of unauthorized use, the customer is obliged to pay reasonable compensation for this use, whereby all further claims and rights of etracker remain unaffected.

(4) All grants of rights are subject to the condition precedent of full payment of the remuneration owed for the overall service. No partial rights are granted in the event of partial payment. The granting of rights shall become ineffective as long as the customer is in arrears with a current payment for the respective service result.

(5) etracker may also make use of third-party rights (third-party licensed material such as software, digital images, etc.) for its services. The customer may only use this third-party license material in connection with and within the scope of the agreed use of etracker’s services. The customer shall indemnify etracker against all claims and rights of third parties due to exceeding the rights of use for which the customer is responsible.

11 Third party rights

(1) etracker is not liable for the admissibility of service results under competition law, nor for their suitability for obtaining industrial or other property rights. etracker does not guarantee that service results created by etracker and in particular their use in the customer’s business area do not infringe any industrial property rights (in particular trademarks, designs, patents) of third parties and is exempt from liability for such infringements. A collision search is not owed by etracker unless this has been agreed separately in text form.

(2) If the rights of third parties are infringed by a service provided by etracker, etracker will, at its own discretion and expense

provide the customer with the right to use the service or
design the service free of intellectual property rights or
take back the service at the invoice price (less reasonable compensation for use).

(3) If a third party claims against the customer that a service provided by etracker would infringe its rights, the customer must inform etracker immediately in text form.

12 External services and subcontractors

Third-party services are services or parts of services that are not to be provided by etracker. If etracker, in agreement with the customer, commissions third parties to provide external services in its own name and for its own account, the customer shall indemnify etracker against any resulting liabilities. The liability of etracker for third-party services (including the selection and instruction of service debtors) is excluded, unless otherwise agreed with the customer in text form.

The customer undertakes not to commission subcontractors of etracker itself or through third parties for similar services for a period of one year from the last time the subcontractor was active in the context of a service provided by etracker for the customer. For each case of culpable infringement, the customer undertakes to pay a contractual penalty of € 25,000, which is to be offset against further claims for damages by etracker.

13 Other liability

(1) etracker is liable for intent and gross negligence in accordance with the statutory provisions. Otherwise, etracker is only liable to the customer in the event of a breach of a material contractual obligation (cardinal obligation) and in the event of damage resulting from injury to life, limb or health and for any guarantees assumed. Material contractual obligations are those whose fulfillment is necessary to achieve the objective of the contract and those on whose compliance the customer as a contractual partner may regularly rely. In the event of a slightly negligent breach of cardinal obligations, liability shall be limited to the foreseeable damage typical of the contract, but to a maximum of half the total remuneration for the order on the occasion of which the liability arises, but to a maximum amount of € 25,000 per claim. Liability for loss of profit is excluded.

(2) Contractual claims for damages by the customer against etracker expire one year after the claim arises, unless shorter statutory limitation periods exist.

(3) The restrictions of the above para. 1 and 2 also apply in favor of the legal representatives, organs and vicarious agents of etracker if claims are asserted directly against them and, mutatis mutandis, also for claims of the customer for reimbursement of expenses.

(4) The provisions of the Product Liability Act remain unaffected.

14 Other

(1) etracker stores and processes any personal data of the customer to the extent necessary to process the contract and to fulfill etracker’s contractual obligations to the customer. The information pursuant to Art. 13 of the EU General Data Protection Regulation, which is provided on our website at https://www.etracker.com/datenschutz/, applies to data processing.

(2) German law shall apply. Insofar as the UN Convention on Contracts for the International Sale of Goods, which has been incorporated into German law, would be applicable to foreign customers, this is excluded.

(3) If individual provisions of these terms and conditions are or become invalid, this shall not affect the validity of the other provisions. The German version of these GTC shall apply exclusively to the interpretation of the contractual obligations.

(4) If the customer is a merchant, a legal entity under public law or a special fund under public law, or if the customer has no general place of jurisdiction within the Federal Republic of Germany, Hamburg is the place of jurisdiction for all disputes arising from contractual relationships between the customer and etracker.