TRACIFY GENERAL TERMS AND CONDITIONS (GTC)

1.1 Tracify GmbH, Agnes-Pockels-Bogen 1, 80992 Munich, Germany (hereinafter “Contractor”) has developed a SaaS platform for tracking user data (hereinafter “Software”). The contractual relationship for the use of the Software and the provision of supplementary services (“Services”) between the user (hereinafter “Client”) is governed by these General Terms and Conditions (“GTC”). Any individual agreement between the parties shall take precedence over these GTC.

1.2 Our offers are only aimed at entrepreneurs (as defined in Section 14 of the German Civil Code (BGB)), i.e. natural or legal persons or partnerships with legal capacity who are acting in the exercise of their commercial or independent professional activity when concluding a legal transaction. We do not conclude contracts with consumers (within the meaning of Section 13 BGB).

1.3 Conflicting, deviating or supplementary general terms and conditions of the Client shall not become part of the contract unless the Contractor expressly agrees to their validity in text form. These General Terms and Conditions shall also apply if the Contractor performs services without reservation in the knowledge that the Client’s terms and conditions conflict with or deviate from these General Terms and Conditions.

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

2.1 The Contractor’s entire offer is subject to the respective industrial property rights (such as the Copyright Act) 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2.2 The entire data and database structure may not be published, reproduced, made publicly accessible or passed on to third parties without the express prior consent of the Contractor. The Client shall be granted a simple, non-transferable right to use the software for the duration of the contract. Any commercial use is not permitted in any case without the prior consent of the Client.

2.3 The software may be used for the brand (trademark) specified in the order, whereby the right of use includes all domains for the respective brand. A separate right of use is required for each additional brand, including sub-brands, of the client.

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

2.5 The client does not receive any rights to the source code of the software.

2.6 The software may contain open source software components. The use of these components is exclusively subject to the corresponding terms of use of the open source software components that are transmitted and/or referenced as part of the open source software components. No provision of these GTC shall affect the rights or obligations of the Client arising from the corresponding terms of use of the open source software components. In the event of contradictions or conflicting provisions between the license terms of the Open Source Software and the provisions of these GTC, the license terms of the Open Source Software shall take precedence.

2.7 The right to use the software also extends to fixes, patches, developments and updates that 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 shall provide the software and documentation of the software 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:

• a) to copy the software beyond the extent required for use in accordance with the contract, either in whole or in part;
• b) to modify, correct, adapt, translate, improve or otherwise make derivative developments to the software;
• c) rent, lend, sell, license, transfer or otherwise make the software available to third parties;
• d) reverse engineer, decompile, disassemble or otherwise attempt to decipher the source code of the Software, in whole or in part;
• e) circumvent or violate any security devices or protection mechanisms contained in or used for the Software;
• f) to take measures that are likely to cause damage to the software or the Contractor’s servers;
• g) remove, delete, alter, obscure, translate, combine, add to or delete any trademarks, documentation, warranties, disclaimers or other rights;
• h) to use the software in a way that violates applicable law and/or the rights of third parties;
• i) 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;
• j) use the Software for or in connection with the design, construction, maintenance, operation or use of hazardous environments, systems or applications or other safety-critical applications or otherwise use the Software in a manner in which the Software could cause physical harm or serious damage to property.

3.1 The Client shall grant the Contractor read-only access to its respective ad manager accounts (“Ads Manager”). The Contractor shall also be granted access to the Client’s store system and, in particular, access to the orders placed and the sales generated. The client is obliged to integrate the contractor’s tracking code into the client’s website header. The client is obliged to carry out the installation of 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 shall be entitled to calculate the performance fee using comparative values from the previous month, cf. section 6.1.

3.3 When using the Software, the Client shall comply with all applicable legal provisions, including the contractual terms, policies and guidelines of the platforms used in connection with the use of the Software (e.g. Facebook).

3.4 The Client shall support the Contractor to a reasonable extent in the provision of the contractual services. The Client shall, without being requested to do so, provide in advance all cooperation, information, data, files and materials necessary for the Contractor to fulfill its contractual obligations. If the Client does not cooperate sufficiently and/or causes delay, the Contractor shall not be obliged to fulfill the contractual obligations for as long and to the extent that the Contractor is prevented from fulfilling the contractual obligations due to insufficient and/or delayed cooperation on the part of the Client. The Contractor shall inform the Client of its inadequate or untimely cooperation and set a reasonable deadline for subsequent performance. If the Client nevertheless fails to fulfill its obligations to cooperate, any resulting unavoidable increases in remuneration, additional expenses (e.g. additional work, cancellation costs, travel expenses) and postponements of deadlines shall be borne by the Contractor. Documented additional expenses incurred by the Contractor through the fault of the Client shall be invoiced at a flat rate of € 150.00 net per hour. After fruitless expiry of the grace period, the software or service concerned shall be deemed to have been provided or rendered.

3.5 The client is independently responsible for providing the technical requirements (e.g. by regularly updating the operating system and browser used) in order to be able to use the offer in full. In the event of technical problems with the service provided, the client is also obliged to cooperate in solving the problem to the best of its ability.

3.6 In the event of registration, the client is obliged to keep his access data, in particular the password he has chosen, secret at all times and to prevent any unauthorized access to his account by third parties by means of suitable measures. The client is obliged to inform the contractor immediately if there are any indications that the access data could be used without authorization. The Client shall be 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 the proper and regular backup of the data.

3.9 The Client acknowledges that it may be temporarily or permanently excluded (“deactivated”) from the offer by the Contractor at any time in the event of a breach of the conditions set out herein.

3.10 Any of the aforementioned obligations of the client must be fulfilled promptly and without culpable delay. If the client fails to comply with its obligations to cooperate despite a single request to do so within a period of five working days, it shall be in default. The resulting delays shall extend the agreed performance deadlines accordingly. Any additional expenses or costs incurred as a result of the client’s failure to cooperate or delay in cooperating shall be borne by the client.

4.1 The software has the agreed quality at the time of the transfer of risk and is suitable for the contractually stipulated use or, in the absence of an agreement, for normal use. It satisfies the criterion of practical suitability and has the usual quality for software of this type. A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation or similar is not a defect. An insignificant reduction in quality shall not be taken into account.

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

4.3 In the event of material defects, the Contractor may initially provide subsequent performance. Subsequent performance shall be effected at the Contractor’s discretion by remedying the defect, by providing software that does not have the defect, or by the Contractor demonstrating reasonable ways of avoiding the effects of the defect. At least three attempts to rectify a defect must be accepted.

4.4 The Client shall support the Contractor in analyzing and remedying 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 required to remedy the defect. The Contractor shall remedy the defect by means of remote maintenance.

5.1 The software shall be provided as “Software as a Service (SaaS)”, i.e. the Contractor shall make the software available to the Client in a logically separate account for remote access via the Internet. The software is not transferred or passed on to the client. The software shall be made available to the Client in its current version/release.

5.2 The software shall be provided in accordance with the Service Level Agreement (SLA) of the Contractor, which is available at www.tracify.ai/legal and which is expressly incorporated into these GTC 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”) within the scope of certain use cases. The accuracy and quality of these recommendations depend on various factors, in particular the quality and quantity of the data collected. Accordingly, Recommendations are non-binding, the Client assumes no consultancy liability or other liability for the Recommendations and the Client should not make any decisions or significant dispositions solely on the basis of the Software’s Recommendations.

5.4 The Contractor shall be entitled to use the assistance of third parties to fulfill individual or all contractual obligations.

5.5 As part of the use of the software, the Contractor may send the Client or the Client’s employees registered as users of the software information on the software, e.g. on updates, upgrades and new functionalities and also general information relevant in the context of the use of the software, by e-mail to their respective registered e-mail addresses.

5.6 The Contractor reserves the right to make further developments and changes to services (e.g. by using newer or different technologies, systems, processes or standards) after conclusion of the contract.

5.7 The Contractor shall strive 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 disruptions to the Internet that cannot be influenced by 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 maintenance work on the software. Disruptions in this sense shall not affect the contractual conformity of the service provided by the Contractor. The Contractor shall endeavor to rectify all server malfunctions as quickly as possible and to carry out maintenance work carefully.

5.8 The Contractor shall not be obliged to provide support or services that are attributable to operating errors, incomplete integration or changes by the Client or third parties not authorized by the Contractor.

6.1 Unless otherwise agreed, the remuneration for the use of the software is based, among other things, on a percentage of the total advertising budget of all channels supported by the Contractor, which is managed via the various Ads Managers (“Ad Spend”). This is based on the budget that is displayed in the respective Ads Manager for the respective period. Each channel (advertising platform, e.g. Meta, Google, Pinterest, TikTok) supported by the contractor is taken into account for billing. Should channels or individual accounts thereof be disconnected by the client, the contractor shall bill on the basis of the last month in which the channels were connected and shall assume a monthly growth in ad spend of 20% when billing. By reconnecting the channels and written notification from the client to the contractor or vice versa, an invoice correction to the actual ad spend can be initiated.

6.2 Unless otherwise agreed, the use of the software shall be invoiced monthly in arrears. Pro rata months of use shall be invoiced pro rata temporis. The initial setup is invoiced at the beginning of the contract term.

6.3 Invoices are issued by e-mail. The client shall 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 indication of an order number or purchase order number on the invoice is not a prerequisite for the payment obligation. Any costs arising from returned direct debits (e.g. bank charges) shall be borne by the Client. The Contractor shall be entitled to invoice these costs

6.4 In the event of late payment, interest on arrears shall be due at the statutory rate. The Contractor is entitled to temporarily deactivate the Client’s access to the software in the event of a delay in payment of more than 30 days until the overdue invoice has been paid. In the event of termination during the initial term, this shall 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 VAT or other taxes.

6.6 The Client’s obligation to pay all remuneration components specified in the offer, in particular but not limited to the so-called “performance fee” pursuant to Section 6.1, shall also remain in force in cases in which the service cannot be performed for a reason for which the Client is responsible. In this case, however, the Contractor must take into account the expenses it saves or fails to acquire.

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

7.1 The Contractor shall be liable, irrespective of the legal grounds, within the scope of the statutory provisions only in accordance with the following clauses.

7.2 The Contractor shall only be liable for damages resulting from injury to life, limb or health and for damages caused by intent or gross negligence on the part of the Contractor or one of its legal representatives or vicarious agents. In addition, the Contractor shall be liable, limited to compensation for foreseeable damage typical of the contract, for such damage that is based on a slightly negligent breach of material contractual obligations by the Contractor or one of its legal representatives or vicarious agents. Essential contractual obligations are obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the client may regularly rely.

7.3 Liability for loss of data shall be limited to the typical restoration costs that would have been incurred if backup copies had been made regularly and in accordance with the risks involved. The Contractor reserves the right to object to contributory negligence. The Client shall be responsible in particular for data backup and defense against malware in accordance with the current state of the art.

7.4 The Contractor assumes no liability for unforeseen software malfunctions from the sphere of third parties, or technical “bugs” or data loss over which the Contractor itself has no influence. In particular, the Contractor shall not be liable for downtimes, bugs or restrictions attributable to third-party software, external platforms (e.g. Ads Manager) or third-party services.

7.5 The Contractor provides a technical tool, but gives no warranty or guarantee that the Client may use this technical tool within the framework of applicable laws. The Contractor shall also not provide any legal advice in this regard. The Client must consult an authorized legal advisor (e.g. a lawyer) for any necessary legal advice and must use the software in such a way that it does not violate any laws.

7.6 If the Client activates automation for advertising budgets, these shall be distributed automatically by the software on the basis of an algorithm. The Contractor shall not be liable for any inadequate distribution of the budget.

8.1 Each of the parties undertakes to treat as confidential all information received within the scope of the contractual cooperation which (a) is marked as “confidential” or “secret” or with an equivalent reference or is verbally designated as confidential; (b) is to be regarded as confidential due to its content; or (c) is derived from confidential information which has been made available; to use it exclusively for the purposes of the contractual cooperation, to treat it confidentially and to protect it from disclosure to unauthorized third parties. This confidentiality obligation shall be imposed on all persons entrusted with the execution of this contract.

8.2 Information which (a) is publicly accessible or subsequently became publicly accessible or was already known to the other party at the time of conclusion of the contract; (b) was developed independently and autonomously by the other party; (c) was disclosed to the other party by a third party who is not subject to a confidentiality obligation, or (d) must be disclosed due to statutory provisions or official or court orders (in this case, the party concerned must be informed of this immediately) is exempt from the confidentiality obligation.

9.1 The Contractor processes personal data provided in connection with the creation of an account in relation to the users of the account in relation to the users of the Software (surname, first name, e-mail 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 in order to enable users to use the software. With regard to the rights of data subjects in this regard and other information obligations, please refer to the privacy policy on the Contractor’s website.

9.2 The Contractor is entitled to access the Software in order to verify the Client’s compliance with the terms of use of the Software, including the remuneration; to carry out diagnostics and analyses and to adjust and optimize the settings of the Software in order to improve the performance and/or security of the Software, provided that these adjustments do not have a negative impact on the Client’s use of the Software. Furthermore, the Contractor shall be entitled to collect system/metadata on the use of the Software in order to use it in the context of identifying and remedying potential defects and errors in the Software, to create statistical analyses and to support and optimize the development of the Software.

9.3 As part of the use of the software, the Client processes personal data. The Client is the controller and the Contractor is a processor. This order processing is regulated in the order processing agreement between the parties, which is available at www.tracify.ai/legal and which is expressly incorporated into these GTC and the contract.

9.4 The Contractor is entitled to record all telephone calls made by the Customer in the context of support with the Client and with the technical hotline and to retain them for a period of six months. The recordings shall serve as evidence of the content of the telephone conversations in the event of complaints or other disputes. In such cases, the retention period may be extended until the final conclusion of the matter. The client can revoke this consent at any time. Telephone support is then only possible to a limited extent.

9.5 The Contractor is entitled to record all actions performed by the Customer with the “User Behavior Analysis Tracking” using a “Product Analytic Tool” and to retain them for a period of six months. The recordings are used to improve the software. The client may revoke this consent at any time.

9.6 The client revocably agrees that case studies and testimonials may be used for one year. If both parties have agreed to marketing measures, the Contractor shall be granted use for 3 years.

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

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 to the end of the respective contract. Unless otherwise agreed, the term of the contract shall be extended by six months in each case 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 terminate the contract for good cause (extraordinary termination) remains unaffected. Good cause shall be deemed to exist in particular if the Client is in arrears with at least two installments due to the Contractor for an agreed installment payment. The Contractor shall be entitled to claim the entire remuneration that would be due by the next ordinary termination date as compensation. In this case, however, the Contractor must take into account the expenses it saves or fails to acquire.

11.1 The Contractor shall grant the Client a test period if necessary. The duration of the test period is specified in 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 notice 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 termination, the costs for the setup will be charged. Further costs such as the monthly flat rate will only be charged if the customer has not used the software during the test period (Section 11.2).

12.1 The Client undertakes to pay a contractual penalty to the Contractor for each case of culpable breach of the obligations to protect confidential information regulated in this agreement or by law, waiving the defense of continuation of the infringement, the amount of which the Contractor may determine at its discretion and the appropriateness of which the Client may have reviewed by a competent court. Further claims of the Contractor shall remain unaffected by this; any contractual penalty shall be set off against this. The client reserves the right to prove that no or less damage has been incurred.

12.2 In the event of a breach of copyright (Clause 2) the contractual penalty shall, depending on the severity of the between 500 and 10,000 euros, depending on the severity of the infringement.

13.1 The Client shall permit the Contractor to mention the contractual cooperation for the purpose of (self-) 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 revoked for good cause. A revocation does not affect the use that has taken place up to that point.

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 shall be the Contractor’s registered office.

14.2 The law of the Federal Republic of Germany shall apply exclusively to all disputes, irrespective of the legal grounds, to the exclusion of all provisions of the conflict of laws that refer to another legal system.

14.3 Amendments and supplements to this agreement or these General Terms and Conditions must be made in writing. This shall also apply to any amendment to this written form requirement itself. Verbal collateral agreements do not exist. Additional or deviating provisions that are agreed in writing by both parties shall be deemed to be part of the agreement from the time they are signed.

14.4 Legally relevant declarations sent by e-mail shall be deemed to have been received if they were sent to the last e-mail address communicated.

14.5 Any invalidity of one or more provisions of these General Terms and Conditions shall not affect the validity of the remaining provisions of these General Terms and Conditions. The invalid clauses shall be replaced by those that come closest to the economic intention in a legally permissible manner. This also applies to the supplementary interpretation of the contract.

14.6 The Contractor reserves the right to amend these General Terms and Conditions at any time, unless the amendment is unreasonable for the Client. To this end, the Contractor shall 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 shall be deemed to have been accepted by the Client. The objection must be in text form.

14.7 Only the German version of this contract shall be legally binding, the English translation is for information purposes only.