Searchmetrics Terms and Conditions for customers from Germany and the rest of the world

Terms and Conditions

Last updated: July 18, 2022

These Terms and Conditions (together with any applicable Offer issued hereunder, the “Agreement”), effective as of the date set forth on an applicable Offer (“Effective Date”), is between Searchmetrics GmbH, a German corporation, with an address at Greifswalder Straße 212, 10405 Berlin, (“Searchmetrics”), and the Customer named in the Offer (“Customer”). Searchmetrics and Customer agree as follows:

Scope of Agreement
This Agreement sets forth under which terms and conditions Searchmetrics will provide access to the Platform and/or Searchmetrics API (as defined below) and/ or any additional Professional Services and Content Services (as defined below) requested by the Customer.
This Agreement shall only apply to businesses within the meaning of § 14 German Civil Code (BGB). A business is a natural or legal entity or legal partnership.This Agreement applies exclusively. Any deviating, conflicting or additional terms and conditions of the Customer do not apply even if Searchmetrics provides services without expressly disputing such Customer terms and conditions. Additional terms and conditions of Customer shall only then become an integral part if Searchmetrics expressly consented in writing to their validity.The Customer accepts this Agreement upon signature. This Agreement also applies to future business relationships, whether or not this is expressly restated by the parties.
Definitions
1. “Affiliate” with respect to a party to this Agreement, means any person or entity that directly or indirectly controls, is controlled by, or is under common control with that party (but only during the period in which that person or entity meets these requirements), where “control” means the right to exercise, directly or indirectly, the power to direct or cause the direction of the affairs, policies or management of a person or entity, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise;
2. “Confidential Information” means information that one party (the “Disclosing Party”) provides to the other party (“Receiving Party”) during the term of this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure;
3. “Content” means any text, video or other audio and sound data or images;
4. ”Content Deliverables” means external facing Content provided by Searchmetrics (as agreed in writing) to the Customer as part of the Content Services;
5. “Content Services” means services provided to Customer that are related to Content, including without limitation content creation, content optimization, and content strategy;
6. “Customer Content” means all Content created through or submitted to the Platform by Customer;
7. “Data Protection Laws” means Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 and any other applicable data protection legislation;
8. “Fees” means payment to be made to Searchmetrics as set out in the Offer;
9. “Intellectual Property Rights” means any copyrights, trademarks, patents, trade secrets, and other intellectual property or proprietary rights arising under United States and/or foreign laws, statutes, treaties, conventions, or the like;
10. “Offer” means a document, prepared and transmitted to Customer by Searchmetrics, that provides Customer with the opportunity under this Agreement to purchase Software licenses, API access or Services covering the period of time specified in such Offer;
11. “Platform” means the software platform operated by Searchmetrics to provide the Services and any functionality accessed or made available through such platform;
12. “Professional Services” means consulting services provided to Customer, including without limitation analysis, audits, strategic planning, workshops, and supplemental training;
13. “Project Deliverables” means an output as agreed in writing between Searchmetrics and Customer provided pursuant to Professional Services or Content Services;
14. “Searchmetrics API” refers to Application Programming Interface access to Searchmetrics Data;
15. “Searchmetrics Data” means all data or other information made available to Customer through Customer’s use of and access to the Software and/or Searchmetrics API as permitted under this Agreement;
16. “Searchmetrics IP” means the Software (including modules like Searchmetrics API or plug-ins), the Software Content, the Searchmetrics Data, the Platform and any Improvements to any of the foregoing and all related Intellectual Property rights like but not limited to copyrights, trademarks, patents and database rights, and excludes any Customer Content and Content Deliverables;
17. “Services” means the services or assistance provided by Searchmetrics under these Terms and Conditions and any applicable Offer;
18. “Software Content” means all content (other than Searchmetrics Data) contained in the Platform and their selection and arrangement, including all designs, text, graphics, video, information, music, and sound and other files, but not including Content subject to copyright or trademark of a third party or Customer Content; and
19. “Term” means 12 months from the date stated in the Offer or as otherwise provided for in the Offer.
Conclusion of the contract
1. Searchmetrics submits an Offer to Customer.
2. This Offer requires signature for acceptance by the Customer.
3. If there is a conflict between the Offer and this Agreement, the Offer shall prevail.
Provision and Use of the Services
1. Promptly following the conclusion of the Agreement, Searchmetrics shall provide the Customer with access to the Platform and/or Searchmetrics API and any information or assistance reasonably requested to facilitate provision of the Services.
2. During the Term, Searchmetrics will provide to the Customer, the Services and access to the Platform.
3. During the Term the Customer will provide Searchmetrics any information, assistance or access reasonably requested to enable the provision of the Services and ensure any information it provides to Searchmetrics is accurate and up to date.
Grant of rights.
1. Searchmetrics is the exclusive owner of all right, title and interest in connection with the Platform, the Services and the associated database and software, including all Intellectual Property rights.
2. Searchmetrics grants Customer a limited, non-exclusive, non-transferable, global license during the Term, without the right to grant sublicenses, to:
  1. access the Platform and/or the Searchmetrics API (as applicable), solely for Customer’s internal business purposes; and
  2. display, download and export Searchmetrics Data received from the Platform or Searchmetrics API, as applicable, through the export and reporting functions provided by the Platform (including modules like API or plug-in’s) solely for Customer’s internal business purposes.
3. The data obtained through the Platform may be analysed and processed statistically. Searchmetrics is permitted, on an industry-specific and cross-sector basis, to consolidate aggregated and anonymised data and provide third parties access to those data. Searchmetrics is permitted to use the aggregated and anonymised data to improve its services. There will be no transmission of non-aggregated data in any event.
4. Searchmetrics grants the Customer an unlimited, perpetual, global, transferable, sublicensable right to the Content Deliverables.
5. Customer permits Searchmetrics to use Customer’s name for customer reference and marketing, advertising and promotional purposes, such permission can be revoked at any time in writing.
Access to Platform
1. In accordance with clause 4a Searchmetrics shall provide Customer with access to the Platform, each individually known as a (“User”). Customer will be provided a personal account on the Platform (“a User Account”), which can be accessed by entering a username and password and should not be shared.
2. Customer shall immediately upon receipt of User Account check the Platform for operability and notify Searchmetrics immediately of any deficiencies.
3. Customer is responsible for maintaining the confidentiality of the User Account and for all activity conducted by the User. Customer undertakes to notify Searchmetrics immediately if it becomes aware that anyone has obtained unauthorized access to any User Account.
4. Customer is not liable for misuse of access information if there has been no breach of duty of care. In this event, Customer shall provide evidence that it is not responsible for the misuse of access information.
5. Customer shall immediately inform Searchmetrics of any misuse of the Platform. In the case of any misuse, Searchmetrics may block access to the Platform until there is no longer any threat of any further misuse. If Searchmetrics becomes aware of any misuse of the Platform other than by notification by Customer, Searchmetrics will inform Customer immediately.
6. Searchmetrics has full discretion to accept, reject or disable User Accounts.
7. Customer is responsible for ensuring adequate networks, Internet connections, telecommunication connections, hardware and software to use the Platform.
Content Services and Professional Services.
1. Customer agrees to co-operate as reasonably required for Searchmetrics to provide the Services under this Agreement. This includes in adequately trained personnel.
2. Customer shall also timely inform Searchmetrics, even without specific request, regarding circumstances which may be relevant to the Content and Professional Services.
3. In case of any Project Deliverables, including Content Deliverables, any objections or requests for change shall be communicated promptly in writing by the Customer, including email. If the Customer does not respond within 7 business days, the Project Deliverables shall be deemed accepted.
Data protection.
1. Searchmetrics and the Customer will comply with their respective obligations under applicable Data Protection Laws. Each party will provide the other party any co-operation reasonably requested to enable the other party`s compliance with this clause .
2. Neither Searchmetrics nor the Customer will do or omit to do any act which may cause the other party to be in breach of any of its obligations under applicable Data Protection Laws.
3. Upon termination of this Agreement, personal data associated with a User and User Account is retained only according to the Searchmetrics data retention policy.
Intellectual property rights.
1. Searchmetrics is the sole and exclusive owner of all Intellectual Property Rights including but not limited to copyrights, patent rights, trade secrets, trademarks and other intellectual property rights, which are developed and provided for according to this Agreement including source codes, database, hardware or other material like analyses, developments, documentations and reports, as well as material for preparation.
2. Copyright and other intellectual property rights that have not been developed according to this Agreement, but are made available nevertheless, remain exclusively with its relevant previous legal owner. Images, texts and other media in the Searchmetrics content experience on the Platform are solely for the purposes of illustrating the function of the product and may be subject to rights of a third party.
3. Reserved Rights and License Restrictions. Customer agrees to comply with the provisions of this Agreement and all laws, rules, and regulations applicable to Customer’s use of the Searchmetrics IP. All rights not expressly granted to Customer in this Agreement are hereby reserved by Searchmetrics and its licensors. Without limiting the foregoing, except as expressly authorized in this Agreement, Customer may not and may not attempt to, nor may Customer permit, enable or request any third party to:
  1. i. Copy, modify, create derivative works of, reverse engineer, decompile, reverse compile, reverse assemble, translate, disassemble or access without Searchmetrics’ authorization any Searchmetrics IP;
  2. ii. Provide, transfer, sell, rent, lease, license, sublicense, distribute, disclose, display, or make available the Searchmetrics IP to any third party, or use the Searchmetrics IP for any purpose not expressly permitted under this Agreement, including for resale, aggregation or other commercial exploitation;
  3. iii. Allow access to any Searchmetrics IP by any user or third party other than Customer’s Representatives acting on its behalf and subject to the terms of this Agreement;
  4. iv. Remove, modify, or obscure any copyright, trademark, or patent notice, or other proprietary or restrictive notice or legend, contained in the Searchmetrics IP;
  5. v. Use any type of bot, spider, virus, clock, automated query, script, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb, or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to distort, delete, damage, or disassemble the Searchmetrics IP;
  6. vi. Use the Searchmetrics IP to develop, transmit, or store information that is unlawful, immoral, libelous, tortious, defamatory, threatening, vulgar or obscene, that is harmful to minors, or that infringes, misappropriates or otherwise violates Searchmetrics’ or any third party’s Intellectual Property Rights;
  7. vii. Use the Searchmetrics IP to act as a service bureau on behalf of, or to otherwise provide processing services or support to, any third party;
  8. viii. Use automated queries with the Platform, such as scripts, except that the automated query of data using the Searchmetrics API as described in the documentation (http://api.searchmetrics.com/documentation ) is allowed, as applicable.
  9. ix. Copy or use any Content of a third party displayed within the Platform that is subject to copyright or trademark;
  10. x. Upload or copy and paste any Content into the Platform or use the Software and/or, Searchmetrics API in a way that breaches any law or infringes any organization’s or individual’s rights; or
  11. xi. Contest, challenge or otherwise make any claim or take any action adverse to Searchmetrics’ ownership of or interest in the Searchmetrics IP.
Fees and payment terms.

a. The Fees and payment terms are specified in the applicable Offer.

b. All Fees are exclusive of VAT unless otherwise specified in the Offer.

c. Unless otherwise agreed, all Fees are payable in advance without deductions.

d. Any specific requirements regarding invoices must be provided to Searchmetrics at the time of signature of the Offer or immediately thereafter.

e. In case of late payment Searchmetrics is entitled to:
1. receive interest at the statutory rate (§ 288 BGB) for the period of the payment delay.
2. suspend access to the Platform and provision of Services, Searchmetrics’ claims to the contractually agreed fees remain unaffected. Any fees not paid when due will bear interest at the statutory rate (§ 288 BGB) during the period of payment delay.
3. terminate the Agreement after notice has been given providing a period of at least two weeks to cure the non-payment. In the event of termination, Searchmetrics’ claims to the contractually agreed fees and claims for compensation remain unaffected. Any fees not paid when due will bear an interest at statutory rate (§ 288 BGB) during the period of payment delay.
Term. The Term will extend automatically for subsequent 12-month Terms unless terminated with 30 days’ written notice prior to the end of the respective term. Notice of termination must be in writing (email is acceptable). Sections 5 c, 9 c, 10 and 14 to 17 shall survive any termination of this Agreement.
Suspension and Termination
1. Suspension. Searchmetrics reserves the right to suspend Customer’s access to the Platform and/or Searchmetrics API (without notice) if it determines in its sole discretion that Customer is in breach of section 5 or 14 of this Agreement or any applicable laws, rules, or regulations. Searchmetrics may suspend this Agreement in the event Customer fails to pay any fees payable under this Agreement and/or the Offer after receiving at least one notice of late payment with two weeks to cure such late payment. Searchmetrics is not liable to Customer for any loss or damage that may result from Customer’s inability to access the Platform and/or Searchmetrics API.
2. Termination. Either party may, upon prior written notice to the other party, terminate this Agreement in the event of a material breach of this Agreement by such other party which remains uncured for a period of thirty (30) days after the breaching party receives notice of such breach.
3. Effect of Suspension and Termination. Without limiting any other provision of this Agreement, any suspension of this Agreement will not relieve Customer of its obligation to pay all fees agreed in the applicable Offer (including interest, if applicable), and Customer will be liable for any costs associated with any collection of fees, including legal fees and collection agency fees. Upon termination of this Agreement, all rights granted to Customer under this Agreement immediately cease, and Customer must delete or otherwise destroy all User Account login details provided to Customer (and any copies thereof).
Guarantees and liability
1. Unless otherwise stipulated below, Searchmetrics is liable in accordance with applicable law.
2. If Customer uploads content (texts, images, videos, audio files or other media content) to the Platform, Searchmetrics is not liable in regard to any third-party property rights. Clauses c. and d. below apply.
3. Customer indemnifies Searchmetrics against any and all claims if the content uploaded by Customer infringes third-party intellectual property rights.
4. In addition, Customer will bear all the court and out-of-court costs and expenses resulting from a breach of intellectual property rights.
5. Searchmetrics’ liability is limited to damages arising out of an intentional breach of a material contractual obligation or due to gross negligence. Nothing in this section is intended to limit or exclude Searchmetrics’ liability for death or bodily injury of Customer caused by Searchmetrics’ negligence.
6. The Platform and the Services, their use and the results of such are provided “as is” to the fullest extent permitted by law. Searchmetrics disclaims all express or implied warranties of satisfactory quality and fitness for a particular purpose, which may be implied. The performance of the Platform relies on third parties beyond the control of Searchmetrics.
7. If Searchmetrics breaches a major contractual obligation due to ordinary negligence, compensation is further limited to foreseeable damages which are typical for this type of contract.
8. The above limitations to liability do not relate to the Customer’s claims under product liability. The provisions of the German Product Liability Act remain unaffected.
9. Searchmetrics is not liable for Customer’s loss of profits or other financial damages.
10. If the contractual liability of Searchmetrics is excluded or limited, the same shall apply to the personal liability of Searchmetrics employees, representatives and agents.
11. Claims for damages expire one (1) year after the Customer has become aware, or should have become aware without gross negligence, of the circumstances on which the claim is based. This does not apply to claims under the German Product Liability Act.
12. Strict liability pursuant to § 536a (1) BGB (German Civil Code) is hereby expressly excluded.
13. Searchmetrics is not liable for the accuracy of data provided by a third party.
14. Searchmetrics is not liable for delays that arise through incomplete data transmission by the Customer.
Confidentiality
1. Each party acknowledge that it may receive Confidential Information and will only use such Confidential Information to enjoy its rights or comply with its obligations under this Agreement.
2. Confidential Information does not include information, technical data or know-how which was already in the possession of the receiving party prior to disclosure, is or becomes part of the public knowledge through no act or omission by receiving party, is disclosed to receiving party by a third party who is not subject to confidentiality restrictions, is approved for release by the disclosing party or is independently developed by the receiving party without the use of any Confidential Information of the other party.
3. Each party covenants and agrees that it will not disclose or cause to be disclosed any Confidential Information of the disclosing Party, except to exercise rights under this Agreement, or as such disclosure may be required by law or governmental regulation, subject to the receiving Party providing to the disclosing Party written notice to allow the disclosing party to seek a protective order or otherwise prevent the disclosure. If requested by the disclosing party, receiving party shall return or destroy the disclosing party’s Confidential Information upon termination of the Agreement.
Retention. Customer is entitled to exercise a right of retention only to the extent that his counterclaim is based on the same contractual relationship.
Amendments
1. Searchmetrics is entitled to amend the Terms and Conditions at any time. Searchmetrics will notify Customer in writing of any changes. If Customer does not object to the changes within six weeks after receipt of the notification, the amendments are deemed accepted. The amendments will become effective if Searchmetrics has expressly notified Customer of this effect in the notification of changes.
2. If Customer objects to the amendments, the Agreement will continue to operate under the previous Terms and Conditions.
3. Amendments according to Point a. can only be made if the amendment does not change any material contractual obligation and the balance between performance and counter-performance will not shift to a substantial disadvantage of Customer.
Final provisions
1. This Agreement is governed by and will be interpreted in accordance with the law of the Federal Republic of Germany. The parties to this Agreement expressly exclude German private international law and the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The place of jurisdiction for any disputes arising from the contract, including tortious claims, is Berlin.
2. The place of performance is Berlin.
3. All notices, requests, claims, demands and other communications regarding this Agreement must be in writing and
  
  i. delivered in person, by reputable overnight courier services (with signature required) or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties to this Agreement to the address set out in the Offer; or
  
  ii. sent by email to the other party’s notice email address set out in the Offer for the Customer and to [email protected] for Searchmetrics.
4. Should any provision of this Agreement be or become wholly or partially illegal, invalid or unenforceable, this shall not affect the validity of the remainder of the Terms and Conditions. The parties undertake to agree to replace the invalid provision with an appropriate provision which, as far as is legally possible, comes closest to what the parties intended to agree.

Previous Terms of Service effective before Feb 1 2022

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