“Trackspot” is a service offered by 2Solution GmbH, Rungwisch 9, 22523 Hamburg, Germany. “Customer” refers to the company that has ordered services of the brand Trackspot from 2Solution directly or via an authorized distribution partner of 2Solution via the order document or online (all mentioned documents together are called “contract” here).
“Software as a Service” refers to services offered by Trackspot based on the use of Trackspot application programs by the customer through access via the internet via a cloud infrastructure. The functional scope of Trackspot’s services includes the recording and evaluation as well as the control of visitor flows. This also includes the necessary technical support services to the principal (“Support”) as described in § 2 and, if applicable, further services of Trackspot according to the Order Document (together the “Services”). The Services do not include consulting, training and other higher services, unless explicitly stated in an Order Document or separately agreed upon by contract.
The term “Programme Documentation” means all written documentation, video tutorials for users and other materials provided by Trackspot as part of the Services.
The term “Trackspot application programs” means the software products in the ownership of 2Solution in their current version (including documentation and updates), which are made available to the client by Trackspot with access via the Internet.
The term “user” means those persons who have been authorized by the customer or by Trackspot’s distribution partners or their respective authorized representatives to use the services.
The term “data” – if used in connection with the principal – means the data provided by the principal from the principal’s service environment.
The term “Order Document” means the Order Document (Purchase Order) signed by the parties.
§ 2 Scope of services; timely provision of services
(1) This Software as a Service Agreement applies to the attached order document and online orders. The scope of services is set out conclusively in this contract.
(2) If Trackspot application programs are used in individual cases via hardware installed in the client’s computer centres or if the client wants to link Trackspot application programs as an OEM with other products or solutions, separate provisions must be made in the order document or in a contract.
(3) Customer is obliged to provide all hardware or software as well as internet access and access that is necessary or desirable for the contractual access and use of Trackspot application programs and services. The client must provide all customer-side mobile and customer-specific applications, the Admin UI and any self-service centres beyond the Trackspot API. If software tools (connectors, adapters or interfaces) of third parties are used, Trackspot’s scope of services does not include software tools of third parties, even if such tools are described in the contract as “certified and supported by Trackspot”. If other hardware or software is provided by third parties (e.g. by system integrators or other IT companies) and such provision is not timely, complete or error-free, and if Trackspot is unable to provide the services in a timely or complete manner, Trackspot shall be released from its obligations under this contract.
(4) Support from Trackspot consists of the following services:
the first line and second line support described in § 3;
Updates, fixes, security warnings and critical patch updates;
General Maintenance Releases, Releases for individual functionalities, Updates of the program documentation;
Assistance with service requests during normal business hours on working days (except Saturdays);
Online access to the Portal Support Portal including the possibility to place service or support requests online;
General customer service (non-technical questions) during normal business hours.
(6) Trackspot will normally keep reaction times of 3 working days for support requests, unless otherwise specified in the order document. Trackspot shall only be liable for damages resulting from delay if certain deadlines are expressly designated as “binding” in the order document.
(7) Trackspot reserves the right to change the terms and conditions for support contained herein subject to a notice period of four weeks. Such changes may not lead to a significant reduction of the support level as long as the client pays subscription fees or the respective agreed remuneration as per contract.
§ 3 Further support conditions
(1) SaaS fees: The subscription fees listed in the order document include the remuneration for support. The Client will therefore not be charged separately for the support services provided under this contract.
(2) Technical contacts: The technical contacts are the users entitled to support as interfaces between Trackspot and the client for the support of Trackspot application programs. They must have basic knowledge of the Trackspot application programs and, if applicable, additional knowledge for the respective phase of implementation or for certain functionalities or within the scope of a possible migration as well as regarding the interfaces of the client’s IT environment and the Trackspot application programs in order to support Trackspot in the analysis and resolution of support requests and to classify questions themselves. When writing support requests, the technical contact person at the customer’s should have a basic understanding of the problem that has occurred and be able to reproduce the problem. In order to avoid interruptions of the SaaS support, the client must announce changes regarding the persons of the technical contact persons in good time.
(3) Trackspot will evaluate the support requests of the technical contact persons in each case and can recommend special training courses that could avoid future support requests or their causes in the future. Such training measures are to be agreed separately in a contract for the provision of higher-level services and consulting services.
(4) Updates for Trackspot application programs: An “Update” is a regular release for the Trackspot application programs that Trackspot makes available to its Subscription Customers without additional compensation. Updates for Trackspot Application Programs do not include such releases, additional options, services or programs that are provided by Trackspot exclusively under separate licenses. As part of the Support, Trackspot will, at its discretion, provide updates to the Trackspot Application Programs on a regular basis during the term of the Agreement, as soon as available. However, Trackspot is not obliged to develop and make available new services, additional functionalities or extensions of the programs. If and as soon as an update for a Trackspot application program is made available to the client according to these SaaS Support Policies, it will replace the previous version of the affected Trackspot application program.
(5) First and Second Line Support: As a rule Trackspot provides both First Line and Second Line Support for the Trackspot application programs themselves to the users entitled to support.
(6) First Line Support includes the following services: Direct answers to users regarding their questions about the performance, functionalities or the use and operation of the Trackspot application programs, direct answers to users regarding problems or topics with the Trackspot application programs, error diagnosis, evaluation and error correction or clarification of topics regarding the Trackspot application programs.
(7) If a diagnosis and/or solution of problems and topics is not possible despite efforts within the scope of what is economically reasonable, the user is entitled to make use of Second Line Support. Such Second Line Support consists of the following services: Error diagnosis and/or evaluation of issues regarding the Trackspot application programs, efforts within the scope of what is economically reasonable to eliminate reported and confirmed errors in the Trackspot application programs, that these essentially have the functionalities described in the program documentation.
(8) Trackspot will evaluate the support requests made and will, if necessary, make suggestions for changes to the customer’s organisational and process flows. In order to define the scope and response times for Second Line Support, error messages are classified as described below. The support requests shall contain error reports, which at the same time shall include each error of one of the following
(9) Failure class 1: Software as a service as a whole cannot be used due to defects in the Trackspot application programs (“blocker”).
(10) Error class 2: Use of the Software as a Service strongly impaired due to defects in the Trackspot application programs (“Critical”); core functionalities of the supported software cannot be used; error consequences can have serious effects on the business of the customer.
(11) Defect class 3: Use of the Software as a Service is impaired due to defects in the Trackspot application programs (“Major”) – major defects impair use; impairments of the business of the Customer are possible.
(12) Error class 4: Use of the Software as a Service slightly impaired (“Minor”) due to defects in the Trackspot application programs – less significant parts of the services are affected by the problem or a solution to avoid major impairments is available. Minor impairment of the client’s business is possible.
(13) Trackspot will allocate resources and response times depending on the respective error classes and set corresponding priorities.
(14) If the principal is of the opinion that support requests critical to the business have not been processed or answered in a timely manner or in a sufficiently qualified manner, or if the principal urgently wishes to discuss support-related topics with Trackspot management, the technical contact person of the principal is entitled to demand an escalation of the request. For escalations the Trackspot support staff will name the responsible staff member at Trackspot who will handle the escalation. The named Trackspot Escalation Employee will determine together with the client the measures to be taken and the resources required for this at Trackspot. If the topic on which the support request is based cannot be resolved, the client is entitled to request that it be forwarded to the next management level at Trackspot. For this purpose the client shall name a contact person within his company who corresponds to the management level at Trackspot to which the support request was last forwarded.
§ 4 Granting of rights, restrictions
(1) Upon acceptance of the order by Trackspot and for the duration of the provision of the services, Trackspot grants the client the non-exclusive, royalty-free, non-transferable worldwide right to use the services exclusively for the client’s operative business under the terms of this contract.
(2) The principal is entitled to grant his individual users the right to use the services for the stated purpose and must ensure that the users comply with the restrictions contained in this contract.
(3) Trackspot is not obliged to physically deliver the Trackspot application programs or to make them physically available within the scope of the services. The client is aware that access to and use of the Trackspot application programs is via the Internet. The customer acknowledges that he does not acquire any licence or right to the Trackspot application programs himself if he has decided to use the cloud version.
(4) Upon termination of the Agreement or the Services, the Customer’s right to access and use the Trackspot application programs and Services described in the Order Document ends.
(5) The programme documentation and/or the Order Document contain information as to which third-party software and/or hardware may be helpful or useful for the use of the Trackspot application programmes. Customer’s right to use such third party technologies is governed exclusively by the corresponding license terms of such third parties to whose validity Trackspot makes reference, and not by the provisions of this agreement.
(6) The contracting entity shall not be entitled
to remove or change any references to Trackspot’s services, references to Trackspot’s or licensors’ intellectual property;
to make the Services available in any form to third parties for the purpose of using them in business operations (unless such access is expressly permitted in the license terms);
to modify, reverse engineer, disassemble, decompile, translate (including the analysis of data structures or similar materials) parts of Trackspot’s Services;
to make the results of the services or benchmark tests regarding the Trackspot application programs available to third parties;
License, sell, rent, lease, transfer, assign, distribute, make public, host, outsource, permit timesharing or other shared use of the Services or Trackspot Application Programs to any third party, or otherwise exploit the Services or Trackspot Application Programs except as expressly permitted in this Agreement.
(7) The rights granted to the client under this contract are additionally subject to the following conditions:
The rights of an authorised user of the Services (e.g. as a “named user”) are indivisible and can only be exercised by a single person (unless the licence is newly granted to another named user, in which case the previous named user no longer has any right to access or use the Services);
Except as expressly permitted herein, the Services may not be copied, reproduced, distributed, published, downloaded, disclosed, posted or transmitted in whole or in part, in any form or by any means, electronic, mechanical, recording, photocopying or otherwise;
The client undertakes to the best of its ability to prevent unauthorised access to the services by third parties.
(8) Insofar as Trackspot provides individual programming or software development services for the client in individual cases, Trackspot shall be entitled to all existing industrial and intellectual property rights, including copyrights and any patent rights. This includes all industrial and intellectual property rights existing in the source code and object code of the software and the algorithms, analyses, diagrams, tests, reports and other documentation belonging to it, including copyrights and patent rights.
With regard to such developments Trackspot grants the client a non-exclusive, worldwide, non-transferable, temporally unlimited right of use within the client’s group of companies.
§ 5 Warranty and exclusions of warranty
(1) Trackspot assures – under the condition that the client fulfils his obligations according to §§ 2 and 4 completely and in each case in due time – that the services are provided with the diligence of a professional IT company at the state of the art at the time the services are provided.
(2) If the Services are not provided in accordance with the said standard of care in any month within the performance period, the Client shall notify Trackspot in writing within a maximum of 5 days after the end of the respective month or within the period specified in the Order Document. All claims in respect of which a notice of defects is not made in the form described within the aforementioned period shall be forfeited and the Client waives any such claims.
(3) In case of a breach of the above mentioned warranties Trackspot will, to the exclusion of further rights of the client, provide the defective services again in order to remedy the respective defects. The warranty period shall be 12 months from the date of performance of the services complained of and all warranty claims shall expire upon expiry of this period.
(4) Provided that the client fulfils his obligations according to §§ 2 and 4 as well as according to paragraph 2, the mentioned warranty for the services is also valid in case of defects of the Trackspot application programs, provided that these do not essentially fulfil the features described in the program documentation. Due to the nature of the “Software as a Service” business model, the warranty for Trackspot’s services includes warranty claims resulting from defects in Trackspot’s application programs; for the client, therefore, only the compliance with the availability of the services according to section 5 is the criterion and basis for warranty claims.
(5) The services should generally be available and ready for operation (“availability”). For Trackspot services the availability is 99.5% (calculated on a monthly basis for any month). In principle, times in which updates, upgrades or new releases of Trackspot’s application programs are installed or activated shall be considered as times of availability, provided that Trackspot has informed the client in advance and in due time. Times in which errors of error classes 3-4 are present shall also be considered times of availability. Times in which the customer does not meet his obligations to provide hardware or other obligations are also considered times of availability. Times during which maintenance work is carried out to ensure the operation of Trackspot’s application programs and services – at Trackspot itself or at Trackspot’s subcontractors or service providers – are also considered as times of availability. Planned maintenance work will be notified to the principal with a reasonable period of notice. Finally, times in which circumstances exist that constitute force majeure within the meaning of § 15 shall also be deemed times of availability.
(6) If the availability of the services in relation to a specific month is not given, the subscription fees for periods of non-availability shall be reduced proportionately for the Customer. Further claims and in particular claims for damages by the Customer are excluded.
(7) The above-mentioned warranties under this § 5 are further excluded if defective services are attributable to one or more of the following circumstances: Incorrect use, use or combination of the Trackspot standard programs together with products or services of third parties; modifications of the Trackspot standard programs not carried out by or for Trackspot; use of the Trackspot standard programs by the client in contradiction to the provisions of this contract, in particular § 4 or non-compliance with the client’s obligations according to § 2.
§ 6 Trial use of the services
Trackspot allows certain services to be used via online registration on a trial basis, for evaluation and non-production purposes in accordance with the terms of this agreement. Such services are provided at the sole risk of the client and are subject to the exclusion of any warranty. Trackspot does not provide any support services in this respect. The trial use is limited to a maximum of 30 days.
§ 7 Indemnification obligation
(1) If claims are asserted by third parties against the Client or Trackspot that data, information, designs, software, services or material (“Material”) transmitted by one party to the other infringes the intellectual property rights of third parties, the party that transmitted the Material to the other party shall assume the defence of these claims at its own expense and shall indemnify and hold harmless the other party from and against all claims, costs and damages. The aforementioned indemnification obligation presupposes and is subject to the condition that the claimed party complies with the following obligations in each case:
The party obliged to indemnify must be informed of this in writing in a timely manner, at the latest, however, within 15 days after the assertion of the claims;
The party obliged to indemnify shall authorise the other party to conduct negotiations with the claimant and shall allow the other party to defend and conduct negotiations (including dispute resolution) at its own discretion.
(2) The party obliged to indemnify shall inform and authorise and support the other party to the best of its ability in the defence, negotiation and settlement of the claims.
(3) An indemnification obligation in the above sense shall not apply in the event that a third party claim is based on the bundling or mixing of material with products or services of third parties. Trackspot is also not obliged to indemnify if the third party claim is based on actions of the client towards third parties, but the services alone would not have infringed third party rights if used as intended according to this contract.
§ 8 Term of the contract
(1) Services under this Software as a Service Agreement will be provided within the time period specified in the Order Document, unless previously terminated in accordance with the terms of this Agreement. At the end of the aforementioned service period, all access rights and rights of use with regard to the Services, including the Trackspot application programs in accordance with the Order Document, shall expire. Unless otherwise agreed in the Order Document, a performance period of one month and a notice period of one month shall apply. If this Agreement is not terminated, the performance period shall be extended by a further month after expiry.
(2) In the event of a breach of a material contractual obligation by a Party which is not remedied within 30 days despite a corresponding written complaint, this shall constitute an important reason which entitles the Party not in breach of contract to terminate the contract. If Trackspot terminates as described above, the client shall pay Trackspot within 30 days all payments agreed in the order document or online (including those for services not yet used) plus any expenses and taxes. The client acknowledges that use of the services is not permitted during the period of breach of contract.
(3) In addition, Trackspot is entitled to suspend and block with immediate effect the registration, keys, password, account and access to and use of Trackspot’s services for the client if the client is in default with payments under this contract and does not make these payments within 10 days of being requested to do so, or if the client breaches any obligation under §§ 2, 4, 7, 13, 16 or 17 of this contract.
Trackspot is entitled to terminate the services under this contract if one of the aforementioned breaches of duty is not remedied within 30 days after Trackspot’s first request. Suspension or blocking of services by Trackspot does not release the client from his obligation to make payments in accordance with the provisions of this contract.
(4) At the corresponding request of the client, Trackspot may allow the client to access Trackspot’s services for a period of up to 60 days after the termination of the order document in question to the extent that it is indispensable to download client data from Trackspot’s IT environment. The Client agrees and acknowledges that in the event of termination Trackspot is not obliged to store the Client’s data and that Client data may therefore be irretrievably lost after the 60 days have expired.
(5) Sections 7, 11, 12 and 14 shall remain in force even after termination of the agreement.
§ Section 9 Fees and taxes
The Services are payable in the amount specified in the Order Document and are non-refundable. The client is obligated to pay all taxes (including value added tax), levies and customs duties levied on Trackspot’s services, with the exception of income taxes payable by Trackspot. The principal shall reimburse Trackspot for reasonable out-of-pocket expenses and charges in connection with any services that Trackspot has provided at the principal’s location or business against proof. All invoices issued by Trackspot are due without deduction of expenses and payable within 30 days of receipt of the invoice by the principal.
§ 10 Confidentiality
(1) The Parties shall exchange confidential information under this Agreement (“Confidential Information”). The Parties undertake to treat as confidential the contents of the contracts concluded between them and all knowledge of Confidential Information of the respective other Party obtained in the course of the performance of the Services and to use such information only within the scope of the cooperation under this contract.
(2) The above restrictions regarding the use and disclosure of the Confidential Information shall not apply to Confidential Information which:
was independently developed by the Recipient without reference to the Confidential Information of the disclosing Party or was lawfully and without restrictions acquired by a third party entitled to provide such Confidential Information
has become generally available to the public without violation of this Agreement by the Recipient; was already known to the Recipient at the time of disclosure without any restrictions or is free from such restrictions after written consent of the Disclosing Party.
(3) Confidential information shall be kept confidential for a period of 5 years after its transmission and shall not be disclosed to third parties. Confidential information shall only be disclosed to such employees and vicarious agents who are obliged to maintain confidentiality in at least the same way as under this contract. The obligation of confidentiality shall not apply in the event that one of the parties complies with legal, official or judicial disclosure obligations.
§ 11 Miscellaneous
(1) Should any provision of this contract prove to be invalid, void or unenforceable, this shall not affect the remaining provisions of this contract. The ineffective or void provision shall rather be replaced by a provision which comes as close as possible to the economic intention between the parties and the purpose of the provision. General terms and conditions or other documents of the Customer shall not apply to the contractual relationship between the parties and this Agreement shall take precedence over such contractual terms and conditions of the Customer.
(2) Changes or amendments to this contract must be made in writing. This also applies to a waiver of the written form requirement.
§ 12 Limitation of liability
(1) Trackspot’s liability for culpably caused damages is limited to typically foreseeable damages.
(2) The aforementioned limitation of liability does not apply in cases of gross negligence or intent or in cases of mandatory legal liability.
(3) The client is not entitled to any rights and claims whatsoever, with the exception of those expressly mentioned in this contract.
§ Section 13 Export control
The services of Trackspot are subject to the applicable German and European rules and regulations on export control. The use of and access to the services are also subject to the aforementioned regulations. The client agrees to comply with all applicable export control regulations and provisions. The customer agrees and undertakes not to export any data, information, software programs and other materials originating from the services in violation of the aforementioned export control regulations or to use them for non-permitted purposes such as the proliferation of nuclear, biological or chemical weapons or the development of missiles.
§ Section 14 Further provisions
(1) This Agreement does not create a company or joint venture between the Parties. Both parties are solely responsible for the payment of wages and salaries, social security contributions, taxes and insurance for their respective employees.
(2) The client is obliged to obtain at his own expense all rights and consents of third parties that Trackspot or Trackspot’s subcontractors need to provide the services under this contract.
(3) This contract shall be governed by the law of the Federal Republic of Germany, excluding the conflict of laws provisions and excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes between the parties that cannot be resolved by mutual agreement is Frankfurt am Main.
(4) The assignment of this contract to third parties as well as individual rights from this contract shall require the prior written consent of the other party.
(5) With the exception of the assertion of claims for payment as well as claims in connection with the infringement of Trackspot’s intellectual property rights, all claims arising from this contract shall become statute-barred one year after they arise.
(6) Trackspot is entitled to verify the scope of use of the services by the client himself or by a third party. In doing so, the client shall provide Trackspot with the information required for the review and shall provide Trackspot with access to the required information. During the review the operational processes of the client should be impaired as little as possible. Any services that the client has used beyond the scope of the contract must be paid to Trackspot within 30 days. If the client does not comply with this obligation, Trackspot is entitled to suspend the provision of services under this contract and – if payment is not made within a further thirty days at the latest despite a corresponding payment reminder – to terminate the contract for good cause. Otherwise, the parties shall bear the costs of the review themselves.
§ 15 Force majeure
Neither party shall be held responsible for any failure or delay caused by any force majeure circumstances, such as war or acts of war, sabotage, hacker attacks or cyber attacks, fire, flood, strikes, line or internet failure or downtime for which neither party is responsible or which is due to government action, denial of governmental or export licenses or other circumstances beyond the control of the parties (“Force Majeure”). Both parties are obliged to endeavour to mitigate the consequences of the Force Majeure. If the circumstances of force majeure last for more than 30 days, each party is entitled to terminate the agreement with respect to the Services not yet performed. The obligation of each party to do everything necessary to mitigate the damage is not affected by this, nor is the obligation of the principal to make payments for services rendered.
§ 16 Data of the client
(2) Trackspot reserves the right to provide the services from different locations, also with the involvement of subcontractors and service providers and without geographical limitation. Unless otherwise agreed, the server locations for the Trackspot application programs are located within the European Union.
(3) Trackspot carries out the data processing as commissioned data processing within the meaning of § 11 Federal Data Protection Act (BDSG). Furthermore, the client undertakes to obtain all necessary consents from third parties regarding the provision of services by Trackspot and the use of services by the client, in particular with regard to the collection, use, processing, transfer or publication of personal information and data. The responsibility for the accuracy, completeness, quality, authorization to use and appropriateness of the client’s data lies solely with the client.
§ 17 Restrictions of use with regard to the services
The client will neither use the services itself in the manner described below nor allow third parties to use the services as described below:
the wilful or grossly negligent infringement of the rights of third parties,
publishing content that is defamatory, obscene, threatening, hateful, offensive, vulgar or insulting
the violation of personal rights or the right to privacy of third parties or the promotion or support of racism or discrimination against certain ethnic groups
unsolicited mass sending of e-mails, “junk mail”, “spam” or chain letters, infringement of the intellectual property rights of third parties or
other violations of laws or other regulations.
Trackspot reserves the right to block the corresponding material or to restrict access to the services if it becomes aware of such a contractually or illegally illegal use. In this case the client shall not be entitled to any rights or claims against Trackspot. The client shall indemnify Trackspot from all rights and claims of third parties arising from a violation of the above restrictions.
§ 18 Tools
(1) Trackspot uses tools, scripts, software and other aids (collectively the “Tools”) to continuously monitor and administrate the Services and to enable Trackspot to handle corresponding support requests. The aforementioned tools will not collect, forward or store any data from the client’s production environment, unless absolutely necessary to handle support requests or solve problems regarding the services.
(2) As far as data is collected by the tools, this data (but not the data from the production environment of the client) can be used by Trackspot within the scope of its portfolio and product management as well as license management. The client commits himself neither to gain access to the tools nor to use them, nor to use them after termination of the contract (including backups).
§ Section 19 Statistical Information
Trackspot is free to collect, compile and evaluate statistical information regarding the performance of the services and to make such information publicly available, always provided that such information does not reveal the data of the client and/or make the company of the client identifiable and/or disclose confidential information. Trackspot is entitled to all copyrights and other rights to such information.
§ 20 Third party websites – contents, products and services
To the extent that the Services enable the Client to add links to third party websites or access third party content, services or products (including third party users, advertisers, sponsors or affiliates of third parties), Trackspot assumes no responsibility for such third party websites or the content altered by the Services, and the Client assumes sole responsibility for all risks associated with accessing or using such websites and the third party content, services or products.
§ 21 Naming of the client as a reference
The client agrees that Trackspot may name the client as recipient of the services and may use the client’s logo in press releases as well as in sales and marketing documents and presentations, and may create a short client profile of the client for marketing purposes, which will be made available on Trackspot’s pages.