Tracify Terms and Conditions (GTC)

1st preamble

1.1

Tracify GmbH, Agnes-Pockels-Bogen 1, 80992 Munich, Germany (hereinafter “Contractor”) has developed a SaaS platform for tracking user data (hereinafter “Software”). These general terms and conditions (“GTC”) apply to the contractual relationship between the user (hereinafter “client”) for the use of the software and the provision of additional services (“Services”). An individual agreement between the parties may take precedence over these terms and conditions.

1.2

Our offers are only aimed at entrepreneurs (within the meaning of Section 14 BGB), i.e. 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 (within the meaning of § 13 BGB).

1.3

Conflicting, deviating or supplementary general terms and conditions of the client do not become part of the contract, unless the contractor expressly agrees to their validity in writing. These general terms and conditions apply even if the contractor performs services without reservation in the knowledge of the client's terms and conditions that conflict with or deviate from these general terms and conditions.

1.4

Insofar as the generic masculine is used in the following provisions, this is solely for reasons of simplicity, without any evaluation being associated with it.

2. Using the software

2.1

The contractor's entire offer is subject to the respective industrial property rights (such as copyright law) and is legally protected by the contractor and/or its licensors. This applies in particular to the entire data and database structure as well as to the external appearance of the website.

2.2

The entire data and database structure may not be published, reproduced, made publicly available or passed on to third parties without the express prior consent of the contractor. The client is granted a simple, non-transferable right to use the software, limited in time to the term of the contract. Any commercial use is prohibited in any case without the prior consent of the client.

2.3

The software may be used for the brand (brand) specified in the order, with the right of use including all domains for the respective brand. Each additional brand, including sub-brands, from the client requires a separate right of use.

2.4

The software may only be used by named users of the client. The client must document the respective authorized users. Sharing the software by different users under a common user account is excluded. The client is responsible for the use of the software by its users and all damage caused by negligent or intentional breaches of duty by its users.

2.5

The client has no right to the source code of the software.

2.6

The software may include open source software components. The use of these components is subject exclusively to the corresponding terms of use of the open source software components, which are transmitted and/or referenced as part of the open source software components. No provision of these terms and conditions affects the client's rights or obligations under the corresponding terms of use of the open source software components. In the event of contradictions or conflicting provisions of the open source software license terms and the provisions of these terms and conditions, the license terms of the open source software shall prevail.

2.7

The right to use the software also extends to fixes, patches, developments and updates, which the contractor makes available to the client. The right to updates does not include the right to use new/additional products and functionalities that are made available as a separate product/module.

2.8

The contractor provides the software and software documentation in electronic form.

2.9

Unless otherwise agreed or required by mandatory law or applicable open source software terms of use, the client is not entitled to:

1. to copy the software beyond what is necessary for use in accordance with the contract, neither in whole nor in part;
2. to modify, correct, adapt, translate, improve or otherwise make derivative developments on the software;
3. rent, loan, sell, license, transfer or otherwise make the software available to third parties;
4. reverse engineer, decompile, disassemble, or otherwise attempt to decipher the source code of the software, in whole or in part;
5. to circumvent or violate security devices or protective mechanisms contained in or used for the software;
6. take measures that are likely to cause damage to the contractor's software or servers;
7. remove, delete, erase, change, obscure, translate, combine, supplement, or otherwise modify trademarks, documentation, warranties, disclaimers, or other rights, such as intellectual property, signs, messages, markings, or serial numbers associated with the software or documentation;
8. use the software in a way that violates applicable law and/or the rights of third parties;
9. to 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 service, or for any other purpose that is detrimental to the contractor;
10. to 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 use the software in a way in which the software could result in physical damage or serious property damage.

3. Obligations of the client

3.1

The client must grant the contractor read-only access to his respective advertising manager accounts (“Ads Manager”). The contractor also has access to the client's shop system and, in particular, insight into the orders/orders placed and the sales generated. The client is obliged to incorporate the contractor's tracking code into the client's website header. The client is obliged to install the tracking modules and components in accordance with the integration instructions provided by the contractor.

3.2

If access and/or rights are not granted, the contractor is entitled to calculate the performance fee using comparative values from the previous month, see section 6.1.

3.3

When using the software, the client must comply with all applicable legal regulations, including the contractual terms, policies and guidelines of the platforms used in connection with the use of the software.

3.4

The client will support the contractor in providing the contractual services to an appropriate extent. The client must provide in advance all cooperation, information, data, files, materials necessary for the fulfillment of the contractual obligations by the contractor. Should the client not cooperate sufficiently and/or cause delays, the contractor is not obliged to fulfill the contractual obligations as long and to the extent that the contractor is prevented from fulfilling the contractual obligations due to insufficient and/or late cooperation on the part of the client. The contractor must inform the client of his insufficient or timely cooperation and set a reasonable deadline for subsequent performance. If the client nevertheless fails to comply with his obligations to cooperate, any resulting increases in remuneration, additional expenses (e.g. overtime, cancellation costs, travel expenses) and delays that cannot be avoided by the contractor will be borne by him. Documented additional expenses incurred by the contractor due to the fault of the client will be invoiced at a flat rate of 150.00€ net. After the grace period has expired without result, the affected software or service is considered to have been made available or provided.

3.5

The client is independently responsible for providing the technical requirements (e.g. by regularly carrying out updates to the operating system and browser used) in order to be able to make full use of the offer. If there are technical problems with the offer provided, the client is also obliged to cooperate in the best possible way in solving the problem.

3.6

In the event of registration, the client is obliged to keep his login details, in particular the password chosen by him, secret at all times and to prevent any unauthorised access to his account by third parties by taking appropriate measures. The client is obliged to inform the contractor immediately if there is evidence that the access data could be used without authorization. The client is liable for any misuse of the account and/or its data.

3.7

The client is obliged to carry out updates as soon as they are available. The compatibility of the software with outdated versions cannot be expressly guaranteed.

3.8

The client is responsible for properly and regularly backing up the data.

3.9

The client acknowledges that he may be temporarily or permanently excluded from the offer (“deactivated”) by the contractor at any time if the conditions set out here are violated.

3.10

All of the above mentioned obligations of the client must be fulfilled promptly and without culpable delay. If, despite a one-time request, the client fails to comply with his obligations to cooperate with a period of five working days, he is in default. The resulting delays extend agreed performance deadlines accordingly. Any additional expenses or costs arising from omitted or delayed cooperation by the client shall be borne by the client.

4. Warranty rights

4.1

The software has the agreed quality upon transfer of risk and is suitable for the contractually required and, in the absence of agreement, for normal use. It meets the criteria of practical suitability and has the usual quality of software of this type. A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation, etc., is not a defect. An insignificant reduction in quality is not taken into account.

4.2

In the event of material defects, the client is obliged to inform the contractor immediately, but at the latest within 5 working days of becoming aware of the defect in text form (e-mail).

4.3

In the event of material defects, the contractor can first correct them. Rectification is carried out, at the discretion of the contractor, by eliminating the defect, by providing software that does not have the defect, or by the contractor showing reasonable ways to avoid the effects of the defect. Due to a defect, at least three attempts to repair the defect are acceptable.

4.4

The client supports the contractor in analyzing errors and resolving defects, in particular by immediately and specifically describing any problems that arise, providing the contractor with comprehensive information and granting it the time and opportunity necessary to remedy the defect. The contractor will remedy the defect through remote maintenance.

5. Provision of software and provision of services

5.1

The software is provided as “Software as a Service (SaaS)”, which means that the contractor makes the software available to the client in a logically separate account for remote access via the Internet. The software will not be transferred or passed on to the client. The software is made available to the client in its current version/release.

5.2

The software is provided in accordance with the contractor's Service Level Agreement (SLA), which is available at www.tracify.ai/legal and which is expressly included in these terms and conditions and the contract.

5.3

Based on the data collected and analyzed with the software, the software generates evaluations, reports, analyses and recommendations (hereinafter “recommendations”) as part of specific use cases. The accuracy and quality of these recommendations depend on various factors, in particular the quality and quantity of the data collected. All recommendations are non-binding, the client assumes no consulting liability or other liability for these recommendations and the client should not make any decisions and significant dispositions based solely on the recommendations of the software.

5.4

The contractor is entitled to use the help of third parties to fulfill individual or all contractual obligations.

5.5

As part of using the software, the contractor can send the client or the client's employees registered as users of the software by e-mail to their respective registered e-mail address, information about the software, e.g. about updates, upgrades and new functionalities, as well as general information relevant in the context of using the software.

5.6

After conclusion of the contract, the contractor reserves the right to further develop and change services (e.g. by using newer or different technologies, systems, processes or standards).

5.7

The contractor strives for high availability of the software. However, the client is aware and agrees that the availability of the software may be limited, in particular in the event of Internet disruptions beyond the control of the contractor, at the server provider itself or due to other circumstances for which the contractor is not responsible, in particular force majeure or during software maintenance work. Disruptions in this sense do not affect the contractual nature of the service provided by the contractor. The contractor strives to rectify all server faults as quickly as possible and to carry out maintenance work carefully.

5.8

The contractor is not obliged to provide support or services that are due to operating errors, incomplete integration or changes not authorized by the contractor by the client or third parties.

6. Remuneration and terms of payment

6.1

Unless otherwise agreed, the remuneration for using the software is based, among other things, on the basis of a percentage of the total advertising budget of all channels supported by the contractor, which is managed by the various Ads Managers (“Ad Spend”). This is based on the budget, which is displayed in the respective Ads Manager for the respective period. Each channel (advertising platform, such as Meta, Google, Pinterest, TikTok) supported by the contractor is included in billing. Should channels or individual accounts be separated from the client, the contractor will bill on the basis of the last month to which the channels were connected and assumes a monthly growth of 20% in ad spending. By reconnecting the channels and writing a message from the client to the contractor or vice versa, an invoice correction can be initiated for the actual ad spend spent.

6.2

Unless otherwise agreed, the use of the software will be billed retroactively on a monthly basis. Prorata months of use are billed on a pro rata temporis basis. The initial setup is invoiced at the start of the contract period.

6.3

Invoicing is sent via email. The client will collect invoices via a SEPA direct debit mandate. If this collection is not possible, the client must pay the invoice within 7 days of the invoice date without discount or other deductions. Unless otherwise agreed, the specification of an order number or purchase order number on the invoice is not a prerequisite for the payment obligation. Any costs arising from chargebacks (e.g. bank charges) are borne by the client. The contractor is entitled to invoice them.

6.4

In the event of late payment, default interest is due at the statutory rate. The contractor is entitled to temporarily deactivate the client's access to the software in the event of a payment delay of more than 30 days until the overdue invoice has been paid. If you cancel during the initial period, this will be extended by the days on which access was deactivated by the contractor.

6.5

The prices stated in the respective offer do not include sales tax or other taxes.

6.6

The client's obligation to pay all remuneration components mentioned in the offer, in particular but not exclusively the so-called “performance fee” in accordance with Section 6.1, remains in force even in cases where the service cannot be carried out for a reason attributable to the client. In this case, however, the contractor must be credited for what he saves in terms of expenses or fails to purchase.

6.7

The client is only entitled to offset undisputed or legally established claims.

7. Liability

7.1

The contractor is liable, irrespective of the legal basis, within the framework of the statutory provisions only in accordance with the following clauses.

7.2

The contractor is only liable for damage resulting from injury to life, limb or health as well as for damage based on intent or gross negligence on the part of the contractor or one of his legal representatives or vicarious agents. In addition, the contractor is liable, limited to compensation for foreseeable damage typical of the contract, for such damages based on a slightly negligent breach of essential contractual obligations by him or one of his legal representatives or vicarious agents. Significant contractual obligations are obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the client may regularly rely.

7.3

The amount of liability for loss of data is limited to the typical recovery costs that would have occurred if backup copies were made regularly and in accordance with the risk. The contractor reserves the right to object of contributory fault. In particular, the client is responsible for data backup and defense against malware in accordance with the latest state of the art.

7.4

The contractor assumes no liability for unforeseen software faults from the sphere of third parties, or technical “bugs” or data losses over which the contractor himself has no influence. In particular, the contractor is not liable for downtime, bugs or restrictions due to third-party software, external platforms (e.g. Ads Manager) or third-party services.

7.5

The contractor provides a technical tool, but does not guarantee or guarantee that the client may use this technical tool within the scope of applicable laws. The contractor also does not provide legal advice in this regard. The client must call in an authorized legal advisor (e.g. a lawyer) for any legal advice that may be required and must use the software in such a way that it does not violate any laws.

7.6

Should the client activate automation for advertising budgets, this is automatically distributed by the software based on an algorithm. The contractor is not liable for an inadequate distribution of the budget.

8. Confidentiality

8.1

Each of the parties undertakes to use all information received as part of the contractual cooperation, which (a) is marked as “confidential” or “secret” or with an equivalent notice or is described orally as confidential; (b) is to be regarded as confidential on the basis of its content; or (c) derived from confidential information that has been provided; exclusively for the purposes of contractual cooperation, to keep it confidential and before becoming aware of it by to protect unauthorised third parties. This confidentiality obligation is to be imposed on all persons who are entrusted with the execution of this contract.

8.2

Exempted from the confidentiality obligation is information that (a) is publicly available or was subsequently publicly available or was already known to the other party at the time the contract was concluded; (b) developed independently and independently by the other party; (c) was disclosed to the other party by a third party who is not subject to any confidentiality obligation, or (d) must be disclosed on the basis of legal provisions or administrative or court order (in this case, the affected party is to inform about this immediately).

9. Data protection and information security

9.1

The contractor processes personal data provided in connection with the creation of an account with respect to users of the software (name, first name, email address, telephone number, password) and personal data relating to the use of the software (log files). This personal data is processed by the contractor as the controller to enable users to use the software. With regard to the relevant rights of data subjects and other information requirements, reference is made to the privacy policy on the contractor's website.

9.2

The contractor is entitled to access the software to verify compliance with the terms of use of the software, including remuneration, by the client; to create diagnostics and analyses and to adapt and optimize the settings of the software in order to improve the performance and/or security of the software, provided that these adjustments have no negative effects on the use of the software by the client. The contractor is also entitled to collect system/metadata about the use of the software in order to use it as part of identifying and correcting potential defects and errors in the software, to create statistical analyses and to support and optimize the development of the software.

9.3

When using the software, the client processes personal data. The client is responsible and the contractor is a contract processor. This order processing is governed by the order processing agreement between the parties, which is available at www.tracify.ai/legal and which is expressly included in these terms and conditions and the contract.

9.4

The contractor is entitled to record all telephone calls made by the customer as part of support with the client and with the technical hotline and to store them for a period of six months. The recordings serve as evidence of the content of telephone calls in the event of relevant complaints or other disputes. In these cases, the storage period may be extended until the matter is finally resolved. The client can withdraw this consent at any time. Telephone support is then only available to a limited extent.

9.5

The contractor is entitled to record all actions carried out by the customer using “User Behavior Analysis Tracking” using a “Product Analytic Tool” and to store them for a period of six months. The recordings are used to improve the software. The client can withdraw this consent at any time.

9.6

The client revocably agrees that case studies and testimonials may be used for 1 year. If marketing measures have been agreed by both parties, the contractor is granted 3 years of use.

9.7

All components of the “Tracify Academy” are the property of the contractor and may not be shared with third parties without written consent from the contractor.

10. duration

10.1

Unless otherwise agreed, the initial term of the respective contract is six months. Unless otherwise agreed, one of the parties may terminate the contract in writing with a notice period of 30 days before the respective end of the contract. Unless otherwise agreed, the contract period is extended by six months if one of the parties has not terminated the contract in due time at the end of the term.

10.2

The right of the parties to cancel the contract for good cause (extraordinary termination) remains unaffected. An important reason exists in particular if the client is in default of at least two installments due to the contractor for an agreed installment payment. The contractor is entitled to claim the entire remuneration, which would be due by the next ordinary termination date, as compensation. In this case, however, the contractor must be credited for what he saves in terms of expenses or fails to purchase.

11. test period

11.1

The contractor may grant the client a test period. The duration of the test period is based on the offer.

11.2

The client is obliged to use the software during the test period.

11.3

If a test period is defined in the offer, the client may terminate the contract at any time during the test period by written notification with effect from the end of the test period if the use of Tracify does not result in an increase in data quality or the performance of the online marketing measures.

11.4

Even in the event of cancellation, the costs for the setup will be charged. Other costs, such as the monthly flat rate, will only be charged if the client did not use the software during the test period (Section 11.2).

12. contractual penalty

12.1

The client undertakes to pay the contractor a contractual penalty for any culpable breach of the obligations set out in this agreement or of the statutory obligations to protect confidential information, waiving the plea of continuation connection, the amount of which the contractor may determine at its discretion, the appropriateness of which the client may have reviewed by a competent court. Further claims made by the contractor remain unaffected; any contractual penalty will be offset. The client reserves the right to prove missing or minor damage.

12.2

In the event of copyright infringement (Section 2), the contractual penalty is between 500 and 10,000 euros, depending on the seriousness of the infringement.

13. reference use

13.1

The client allows the contractor to mention the contractual cooperation for the purpose of (own) advertising, in particular on the contractor's website or social network profiles, and in the course of internal and external presentations (“testimonial use”).

13.2

Once consent has been given for use as a reference/testimonial, it can only be withdrawn for good cause. A revocation does not affect the use that has taken place up to that point.

14. General

14.1

The place of performance and exclusive place of jurisdiction for disputes with merchants, legal entities under public law or special funds under public law arising from contracts is the registered office of the contractor.

14.2

Regardless of the legal reason, the laws of the Federal Republic of Germany shall apply exclusively to all disputes, excluding all provisions of conflict of law that refer to another legal system.

14.3

Amendments and additions to this agreement or these general terms and conditions must be made in writing. This also applies to any amendment to this written form requirement itself. There are no additional oral agreements. Additional or different provisions agreed in writing by both parties shall be considered part of the agreement from the time they are signed.

14.4

Legally relevant declarations that are sent by email are considered received when they have been sent to the last email address provided.

14.5

Any invalidity of one or more provisions of these general terms and conditions shall not affect the effectiveness of the remaining provisions of these general terms and conditions. Instead of the ineffective clauses, what is closest to the economic intent in a legally admissible manner shall apply. This also applies to the supplementary interpretation of the contract.

14.6

The contractor reserves the right to change these general terms and conditions at any time, unless the change is not reasonable for the client. For this, the contractor will notify the client in good time. If the client does not object to the new general terms and conditions within a period of two weeks after notification, the amended general terms and conditions are considered accepted by the client. The objection must be made in writing.

14.7

Only the German contract text is legally binding; the English translation is for informational purposes only.

Status: April 10, 2025 — version 3.1

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