GTC - etracker

General Terms and Conditions of etracker GmbH

Status as of 22.11.2021

Download the etracker terms and conditions as PDF filei

1 Scope of application

These General Terms and Conditions (GTC) apply to all contracts and service relationships between etracker GmbH, Erste Brunnenstraße 1, 20459 Hamburg, Germany (hereinafter referred to as “etracker”) and its customers regarding the use of products and services that etracker offers its customers. For individual services such as software development, consulting and training, the separately included General Terms and Conditions of Contract (GTC) for Individual Services of etracker apply. The latest version of the GTCs and GTCs shall also apply to future contracts between etracker and the customer, even if they are no longer mentioned in later contracts, orders or services.
Conflicting or deviating conditions and contractual offers of the customer are hereby rejected by etracker. Provisions deviating from these General Terms and Conditions shall only become part of the contract if this has been agreed with etracker within the framework of an individual agreement concluded between the parties.

etracker offers various services and benefits. Supplementary terms and conditions and license terms may apply to individual offers, which, if included, take precedence over the provisions of these General Terms and Conditions.

2 Definitions

For the purposes of these General Terms and Conditions, the following definitions apply:

Account: The customer’s virtual access account for the respective contractual relationship. The account is used for billing, assigning services and the contract model as well as the customer’s personal settings.
etracker services: The entirety of the services provided or products made available by etracker within the scope of the contractual relationship in accordance with the service description valid for the respective service. This includes the products etracker analytics, etracker Optimiser and signalize as well as all other products and services that etracker offers its customers.
Registration: The customer’s electronic registration or order for the respective contractual relationship.
Tracking code: A piece of code (“sniplet”) or SDK that is integrated into the customer’s website or app and by means of which information required for the etracker services can be collected or further services can be provided.
etracker software: The software provided to the customer by etracker for use within the scope of the contractual relationship. The tracking code is part of the etracker software.
Customer: Entrepreneurs or consumers with whom etracker maintains a business relationship.
Personal data: Individual details about personal or factual circumstances of an identifiable or identified natural person.
Entrepreneur: Natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, are acting in the exercise of their commercial or independent professional activity.
Consumers: Natural persons who enter into business relationships with etracker without any commercial or self-employed professional activity being attributable to them.

3 Conclusion of contract

3.1 Content of the contract

The offers of etracker are subject to change unless they are designated as binding. The subject matter of the contract is the products and services of etracker as offered in the respective product description at the time the contract is concluded with the customer.

3.2 Procedure for the conclusion of the contract

By registering, the customer makes a binding declaration that they wish to use the etracker services and/or the etracker software under the contractual conditions offered by etracker and selected by the customer (customer’s contractual offer). The customer’s contract offer is transmitted to etracker when he has entered his contract data as part of the registration process and completes the registration by clicking on a confirmation link.

etracker can confirm receipt of the customer’s online registration or order. The confirmation of receipt does not constitute a binding acceptance of the registration or order. However, the confirmation of receipt can be combined with the declaration of acceptance.

The contract between the customer and etracker comes into effect upon acceptance of the customer’s contract offer by etracker or upon receipt of the identification data by the customer. etracker is not obliged to accept contract offers. In the case of an additional booking via the account, the contract for such additional services is concluded by confirmation from etracker or by the provision of the booked service within 5 working days of the customer’s request for provision.
The customer can correct input errors during registration by pressing the back button and changing the information entered. The contract language is German.

The text of the contract is not stored by us and can no longer be retrieved after the order process has been completed. The customer can print out these terms and conditions and the data of his booking/order before sending it and receives a contract confirmation in accordance with the statutory provisions.

3.3 Registration data

The customer undertakes to provide truthful information when registering and to keep this data up to date at all times. If this data is or becomes incorrect during the term of the contract, the customer shall update or correct it in their account without delay. Contract communication usually takes place by e-mail. The customer is responsible for ensuring that the e-mail address specified by him in his master data is correct and that he makes settings for his systems and his e-mail inbox so that he can receive contract-related messages from etracker.

3.4 Contractual performance

etracker owes the respective contractual service in accordance with the current service description.

etracker is entitled to make changes and adjustments to its range of services, provided that this does not impair the contractual performance for the customer. This includes, in particular, improvements to the software and extensions to the range of functions as well as adaptations to the state of the art. In addition, etracker is entitled to adapt the contractual services to comply with the applicable legal requirements and to adapt them to the state of the art and the applicable requirements and standards of data protection and data security. Unless otherwise stated in the respective service description, the availability of etracker services is at least 99% per year. In the event of unforeseeable events, etracker is entitled to interrupt etracker services for the purposes of maintenance or repair, insofar as this is necessary for stable and secure service operation. A guarantee in the legal sense is only granted by etracker on the basis of a guarantee agreement in text form using the term “guarantee”. The achievement of commercial or advertising success over and above the agreed contractual performance is not part of our service.

4 Prices and terms of payment

4.1 Prices

The prices for the services used by the customer result from the respective order forms/offers and from the respective valid price lists as they are available on the etracker websites(www.etracker.com/www.signalize.com). etracker accepts the payment methods shown in the customer’s account or in the order process. etracker is entitled to reject certain payment methods in individual cases if etracker has a legitimate interest in doing so. Payment by check requires individual prior agreement with etracker.

4.2 Invoicing

Invoices are issued to the customer in electronic form, unless otherwise agreed with the customer. The invoice is sent exclusively by e-mail to the address provided by the customer.

4.3 Due date and default

Current fees are payable in advance for the respective service period without deductions. Usage-based fees are billed monthly after the service has been provided. The customer receives invoices for usage-dependent fees (insofar as such fees are charged by etracker) for the previous calendar month by e-mail. Invoice amounts are due upon invoicing and payable within 21 days. Non-utilization of the contractual services by the customer shall not release the customer from its obligation to pay current fees.

If the customer defaults on payment, etracker is entitled to block the customer’s access to further services, in particular access to the etracker services, at the customer’s expense after giving notice until the outstanding claims have been settled in full. The customer remains obliged to pay current charges during the blocking period.
If a reasonable deadline is not met, etracker is entitled to terminate the contract without notice.

The customer must reimburse etracker for the costs incurred for returned direct debits and dishonored checks to the extent that the customer is responsible for the event causing the costs.

Further claims and rights of etracker remain unaffected.

4.4 Offsetting

The customer can only offset claims of etracker with uncontested or legally established claims or with claims from the same contractual relationship. The exercise of a right of retention is only permissible insofar as the counterclaim is based on the same contractual relationship. The above restrictions on rights of set-off and retention do not apply to counterclaims of the customer in the context of exercising the statutory right of withdrawal.

4.5 Objections

Objections to the invoice must be submitted to etracker (see address in paragraph 1) in text form (in writing or by email) to billing@etracker.com within six weeks of receipt of the invoice. If the customer does not raise any objections within six weeks of receipt of the invoice, the invoice shall be deemed approved. etracker will specifically inform the customer of the consequences of failing to raise an objection in good time in the invoices. The customer’s statutory claims in the event of objections after expiry of the deadline shall remain unaffected.

4.6 License changes / upgrades

An upgrade within the products/licenses offered by etracker is possible at any time. The customer can select a more comprehensive service package for the product they are using. A change made in the customer’s account is binding and is deemed to be a new conclusion of contract under the conditions applicable to the selected license, in particular with the contract term applicable to the new license, which begins with the changeover to the new license. Unused usage fees from the old contract will be offset against the fees for the new contract. A downgrade (selection of a less comprehensive service package) is only possible for signalize during a current contract period. Any credit balances will be offset against the next subsequent invoices. A payout or refund is excluded.

5 etracker software

etracker has provided service descriptions on its website at www.etracker.com and www.signalize.com, which the customer can use to convince himself of the suitability and usability of the etracker services for his purposes and intentions.

The customer acknowledges that, given the current state of technology, technical inaccuracies and deviations cannot be ruled out in website and app tracking.

Before the integration of etracker services and/or the installation of etracker software, the customer must make a backup copy of his data on the installation computer or server and of the website into which the etracker services are integrated. If the customer discovers an error during or after the integration of etracker services or during the installation of etracker software, the customer should immediately cancel or reverse the installation in order to minimize damage.

6 Data protection and data security

6.1 Data protection

Data protection and data security play a particularly important role at etracker. etracker therefore only processes personal data insofar as this is necessary for the processing of contractual relationships between customers and etracker or etracker is authorized to disclose such data (e.g. when naming a company as a reference customer). Personal data will not be passed on to third parties unless it is necessary for the provision or invoicing (including debt collection) of the contractual services or there is a legal obligation to disclose it. All etracker employees are obliged by law to maintain data secrecy.

The customer is hereby informed in accordance with Article 13 of the EU General Data Protection Regulation (EU GDPR) that etracker stores and processes their full address and other information provided to etracker in the course of the contractual relationship. For details on how we handle your personal data, please refer to the further information in our privacy policy: https://www.etracker.com/datenschutz/ or https://www.signalize.com/datenschutz/.

The customer is prohibited from merging data collected with the etracker services with personal data of third parties, in particular usage data, without the proper consent of the data subject, or to use such data in any other way for personal data evaluations, unless and insofar as such processing is lawful on the basis of another relevant legal basis. The customer is responsible for the correct implementation of a use of the etracker functions that is permitted under data protection law and for informing the persons concerned as required.

On the websites on which the etracker services are used, the customer shall inform the data subjects in a prominent place about data processing with the etracker services. This should at least be done by means of the data protection notice provided in the etracker account or signalize account under “Settings”, which must in particular also contain the link provided to an objection option. Please only use the data protection notice provided in your own etracker account or signalize account, as this contains a link individually adapted for the customer’s website and other links are not functional for the customer’s site/applications.

If the customer also uses etracker services to process personal data, it must clearly inform visitors to the website of this fact and, if necessary – insofar as required by data protection law – obtain the consent of the data subjects prior to data processing. The customer must also ensure that the data is deleted once the purpose of storage no longer applies.

6.2 Order processing in accordance with EU GDPR and BDSG new

In accordance with the EU GDPR, certain contractual provisions must be complied with for the processing of personal data on behalf of the customer (“order processing”) in the European Union. The conclusion of a written or electronic agreement on order processing between etracker and the customer is therefore mandatory for the use of etracker services. etracker provides the customer with the opportunity to conclude such a contract in the course of his registration. The customer alone is responsible for the conclusion and existence of such an agreement.

6.3 Data security

etracker has taken technical and organizational measures in accordance with the law to protect personal data stored by etracker from misuse and unauthorized access. etracker is not responsible for data security outside the sphere of influence of etracker, e.g. in the case of data transmission by the customer over the Internet via services and interfaces not controlled by etracker. The customer is responsible for the security and backup of the data transmitted by the customer via the Internet or technically accessible from the Internet.

The customer is responsible for the regular, proper and risk-appropriate backup of the data important to him. etracker is not liable for the loss of data unless this was caused by gross negligence or intent on the part of etracker.

The customer shall ensure that its servers and end devices connected to the etracker services have state-of-the-art security precautions (e.g. virus scanners with current virus signatures, firewalls) and that security updates of the operating software and applications of these computer systems are installed, provided that this does not conflict with any legitimate interests of the customer. The customer is responsible for the appropriate organization of data protection in accordance with the statutory provisions and the data protection requirements applicable to it, as well as its information security measures.

6.4 Care of the customer

6.5 etracker data protection signet

The customer of etracker Analytics is entitled to integrate the etracker data protection signet into its website for the duration of the service period. This allows the customer to inform his website visitors about the data protection-compliant tracking with etracker and at the same time creates trust among his visitors. Only the integration method provided in the customer’s account under “Settings/Account/Data protection signet” may be used.

7 Property rights

Upon conclusion of the contract, etracker grants the customer the non-exclusive, non-sublicensable and non-transferable right to use the contractual services of etracker, limited to the term of the contract, insofar as this is necessary for the use of the contractual services. The right of use expires if the customer defaults on payment owed to etracker.

The customer may only use the data and evaluations obtained by means of the etracker services for his own use. The customer may not allow third parties to use etracker’s services without the written consent of etracker. Commercial use of the analysis results for third parties is only possible on the basis of a separate agreement with etracker.

The customer is not permitted to

modify the etracker software or the documentation, translate, reverse engineer to source code, decompile or disassemble or create derivative works; information within the meaning of Section 69 e of the German Copyright Act, which is required to establish the interoperability of independently developed computer programs with the software, can be acquired from etracker on request against payment of the applicable prices;
to transfer, lend, rent, lease, distribute or use the services of etracker to provide services to third parties or for third parties, to grant rights to the etracker software, the documentation or other services of etracker in any form to third parties, unless etracker has given its prior consent to this in text form, corresponding fees have been paid and all other conditions of etracker have been fulfilled; or
to remove, change or make illegible the designations, labels or markings relating to copyright and other intellectual property rights from the etracker software, the documentation or other services of etracker.

Any HTML or other code provided to the customer by etracker (in particular the tracking code and/or the signalize code) must be used by the customer unchanged and as intended.

Insofar as etracker has technically protected the contractual products and/or services (e.g. firewalls or security keys), the customer is not permitted to remove or circumvent the security precautions.

All rights to the etracker software and the etracker services remain with etracker and/or the suppliers and partners of etracker.

8 Further rights and obligations of the customer

The customer creates the necessary conditions for the use of etracker services on his site(s) himself and at his own expense. This applies in particular to network connections (Internet connection), telecommunications connections, hardware and software (especially up-to-date and compatible browser technology) as well as sufficiently knowledgeable personnel. The integration and installation of the etracker services (in particular the integration of the tracking code/signalize code into the customer’s website(s)) is carried out by the customer.

The customer is prohibited from carrying out or having carried out automated report queries via interfaces other than those approved by etracker for this purpose, e.g. via scripts or “tools”, without the separate consent of etracker in text form.

When registering, business customers designate an employee who can be reached at short notice during normal business hours (10 a.m. to 6 p.m. on weekdays) and who is responsible for all questions relating to cooperation with etracker.

etracker will send important notifications to customers via the messaging function of their account or by e-mail. The customer is therefore obliged to check at regular intervals whether there are any messages for him/her in his/her account or in the e-mail account specified during registration.

9 Defects

The customer must notify etracker of any defects in text form without delay and support etracker in an appropriate and reasonable manner by describing the error as precisely as possible during error analysis and error rectification. Legal claims of consumers remain unaffected.

10 Other liability

10.1 Liability of etracker

etracker is not liable for impairments, restrictions or impediments to performance or interruptions or disruptions to the etracker services that are based on circumstances outside the area of responsibility of etracker.

etracker is liable without limitation for damages for which etracker is responsible due to intent, gross negligence or breach of a material contractual obligation (cardinal obligation). 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. Claims for damages (with the exception of claims for defects) by entrepreneurs that are based on a simple negligent breach of duty by etracker expire one year after the occurrence of the damage. etracker has unlimited liability for slight negligence in the event of injury to life, limb or health. If the culpable breach of a material contractual obligation is not due to gross negligence or intent, etracker’s liability is limited to such typical damages as were reasonably foreseeable at the time the contract was concluded, but not exceeding the amount of the total annual remuneration paid by the customer to etracker for the product giving rise to liability at the time the damage occurred. Liability for all other damages is excluded, whereby liability in accordance with the provisions of the Product Liability Act and for any guarantees assumed remains unaffected. Liability for loss of profit towards commercial customers is excluded.

The aforementioned liability regulations also apply mutatis mutandis in favor of the bodies, employees and agents of etracker and accordingly for claims for reimbursement of expenses.

10.2 Infringements of rights by the customer

The customer undertakes not to violate any applicable legal provisions or contractual provisions when using the etracker services. In particular, the customer shall not assert any third-party rights (e.g. B. personal rights, copyrights, industrial property rights (in particular trademark rights) or other rights).
The customer shall indemnify etracker against any damage caused by infringements for which the customer is responsible. The indemnification also includes the costs of legal defense to a reasonable extent, but at most to the extent permitted by law, in particular under the German Lawyers’ Fees Act (RVG) and the German Court Costs Act (GKG).

11 Term and termination

The customer selects a contract term (service period) when the contract is concluded. For a contract term of twelve months or more, the contract can be terminated by either party with four weeks’ notice to the end of the selected service period. If the contract term is less than twelve months, the contract can be terminated by either party at any time at the end of the selected service period. If the contract is not terminated, the contract term is automatically extended at the end of each service period by the service period selected when the contract was concluded.

A payment method that differs from the benefit period (e.g. monthly) does not change the duration of the benefit period.

Notice of termination may only be given in text form.
The right to extraordinary termination for good cause remains unaffected. etracker is entitled to an extraordinary right of termination (in addition to other termination rights based on these terms and conditions) in particular if

the customer has made or makes false statements at the time of registration or during the term of the contract that are material to the contractual relationship;
the customer has not paid in the event of default of payment after the unsuccessful setting of a deadline (cf. Section 4.3.);
the customer modifies or otherwise manipulates the etracker software or other contractual services of etracker;
the customer presents racist, pornographic, violence-glorifying or trivializing, immoral or infringing content on its website or disseminates such content using etracker services;
the customer infringes the intellectual property rights of etracker or etracker’s contractual partners;
the customer breaches the General Terms and Conditions or material contractual obligations to a more than insignificant extent.

Prepaid fees will only be refunded in the event of extraordinary termination for which etracker is responsible.

From the time the contract is terminated, etracker is entitled to irrevocably delete all data stored during the term of the contract.

At the end of the contract, the customer is no longer entitled to use the terminated services, in particular the etracker software. Any hardware and software provided must be returned to etracker immediately at the end of the contractual relationship. The customer is obliged to immediately delete the etracker software installed on its systems or third-party systems and to remove etracker code components integrated into its website (in particular the tracking code/signalize code) at the end of the contract. If the customer does not remove the tracking code/signalize code, he/she must continue to pay etracker the remuneration in accordance with the remuneration regulations of the expired contract during the period in which the tracking code/signalize code was not removed after the end of the contract.

etracker will inform the customer of this circumstance in text form as part of the confirmation of termination.

12 Special provisions for Signalize products

12.1 Object

With Signalize, etracker provides the customer with a solution for direct user contact and interaction via browser-based notification functions. The actual transmission of notifications depends on the individual browser settings and the browser technology selected by the respective end user. etracker is therefore not responsible for actually triggering the notification for the user in each individual case.

12.2 Special obligations of the customer

The customer undertakes to use the Signalize function and the services, performances and functions provided by etracker in this context exclusively in a lawful manner. In particular, the customer undertakes not to use this function to distribute malware, illegal content or unwanted or otherwise prohibited advertising, nor to modify or use the services and performances provided in this context in such a way that default settings selected by the user with regard to the display of notifications are ignored or overridden.

Insofar as the customer processes personal data with Signalize within the meaning of data protection regulations, the customer undertakes to comply with the applicable statutory provisions. We generally recommend a conscious, clear and informed consent of the user as the basis for data processing. We provide the customer with a sample text for the privacy policy in relation to Signalize, for whose legal content and existence we assume no liability. If the user authorizes the processing of personal data in connection with Signalize on the basis of other legal provisions, in particular a balancing of interests in accordance with Art. 6 (1) lit. e EU GDPR, the customer is also solely responsible for the existence of all necessary requirements and the lawfulness of its data processing in this respect. No. 10.2 of these GTC applies to infringements of the customer’s rights.

13 Dispute resolution

The European Commission provides a platform for out-of-court online dispute resolution (ODR platform), which can be accessed at https://ec.europa.eu/consumers/odr/main/. As a matter of principle, we are neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration board. However, we will endeavor to resolve any differences of opinion arising from our contractual relationship by mutual agreement. Contact us so that we can find a solution together. Our e-mail address is: info@etracker.com.

14 Right of withdrawal for consumers

Consumers have a statutory right of withdrawal:

REVOCATION POLICY

Right of withdrawal

You have the right to withdraw from this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the date of conclusion of the contract. To exercise the right to cancel, you must inform us, etracker GmbH, Erste Brunnenstraße 1, 20459 Hamburg, phone: +49 40 55 56 59 50, e-mail: info@etracker.com, of your decision to cancel this contract by a clear statement (e.g. a letter sent by post or e-mail). You can use the attached sample withdrawal form, but this is not mandatory. To meet the withdrawal deadline, it is sufficient for you to send your notification of exercising your right of withdrawal before the withdrawal period has expired.

Consequences of revocation

If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; under no circumstances will you be charged any fees for this repayment. If you have requested that the services should commence during the withdrawal period, you must pay us a reasonable amount corresponding to the proportion of the services already provided up to the time at which you inform us of the exercise of the right of withdrawal with regard to this contract compared to the total scope of the services provided for in the contract.

End of the withdrawal policy

Sample withdrawal form

If you wish to withdraw from the contract in accordance with the above paragraphs, you can complete this form and return it to us. However, the use of the form is not mandatory.

To
etracker GmbH, Erste Brunnenstraße 1, 20459 Hamburg,
E-mail: info@etracker.com

I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*)
Ordered on (*)/received on (*)
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s) (only for notification on paper)
Date
(*) Delete as appropriate.

15 Final provisions

The German version of these General Terms and Conditions shall always be used to interpret the content of the contract and the rights and obligations of the contracting parties.

etracker is entitled to use third parties to fulfill its contractual obligations. The responsibility of etracker remains unaffected by this.

The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply. This choice of law applies to consumers only insofar as the consumer is not deprived of the protection afforded by mandatory provisions of the law of the state of the consumer’s habitual residence.

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.

The possible invalidity of individual provisions of these General Terms and Conditions shall not affect the validity of the remaining provisions. The ineffective points shall be replaced by the statutory provisions, where applicable. However, if this would constitute an unreasonable hardship for one of the contracting parties, the contract as a whole shall become invalid.