The use of services, products and offers from SEOlytics (hereinafter collectively referred to as “Services”) by the Customer shall be exclusively subject to these standard terms and conditions. SEOlytics shall mean within these standard terms and conditions SEOlytics GmbH, Am Neumarkt 30, 22041 Hamburg, (Germany). In the case that these standard terms and conditions should contradict or conflict with special terms and conditions that have been stipulated to for certain Services then such special terms and conditions shall prevail. The Customer’s standard terms and conditions and any differing contractual offers are hereby objected to. SEOlytics’ offers are directed towards only those individuals or businesses that upon execution of a contract are exercising their powers in furtherance of their business or professional services (merchants). The Customer hereby represents and warrants upon assent to these standard terms and conditions that the Customer is a merchant.
II. Execution of Contract
1. SEOlytics’ offers of services are invitations for offers and are not binding. The Customer upon placement of an order shall make a binding offer to SEOlytics regarding the execution of a contract containing the respectively selected condi-tions. The contract shall be deemed concluded upon confirmation of the order by SEOlytics or upon tender of the Services within 5 working days after receipt of the order. There shall be no right to demand the execution of a license agreement.
2. If, in order to use Services (in particular upon registration), information and data necessary for the contract must be furnished (especially names, businesses, addresses, contact information, payment information), then this information must be given truthfully and completely. If this information should change, then the Customer must promptly update this data.
3. The Customer shall receive an e-mail with the access information to the Customer’s personal account at www.seolytics.com in order to use the Services.
III. Description of Services
1. SEOlytics shall provide the Customer Services for search engine optimization (hereinafter SEO). The scope of Services is contingent on the respective detailed description of services for each product.
2. The description of services serves only as an example of our Service and does not constitute an express warranty. There shall only be an express warranty for our products, if expressly indicated in writing as such. Any possible manufacturer warranties shall not be affected.
3. The Service permits the organization and aggregation of various data from different sources according to the conditions of the respective description of ser-vices. This data will be analyzed and visually processed using the Service in order to facilitate an efficient optimization of the Customer’s pages for better localization in the search engine. To a certain extent estimates of future or potential visitors, action recommendations, and analyses of competitors will be offered. The results of the evaluation are orientated on the input, search criteria and data from the Customer. SEOlytics contractual performance shall be rendered upon placement of the Services at the Customer’s disposal.
4. Notwithstanding its contractual obligations, SEOlytics reserves the right within the scope of recognized technical standards to alter the technologies used for the Services (server, operating systems, operations) to the extent this does not impair contractual services to the Customer.
5. SEOlytics shall provide the stipulated Services. SEOlytics shall endeavor to continually render Service. SEOlytics is not obligated to ensure the successful retrieval by the Customer in any particular given case. SEOlytics warrants an average availability of Service of 98% during each calendar quarter, unless otherwise agree to. SEOlytics may interrupt Service within the scope of any stipulated availability for maintenance purposes as soon as this is technically necessary and shall give the Customer reasonable advanced notice regarding any such interruption of Service. SEOlytics may promptly execute measures, which cannot be postponed (e.g. occurrence or likelihood of critical security problems or to ensure system stability), whereby SEOlytics must notify the Customer as soon as possible about service interruption. SEOlytics will attempt whenever possible not to interrupt recording activities when carrying out maintenance work so that the evaluation results for the Customer after the completion of maintenance work is also available for the duration of maintenance period.
6. Telecommunication equipment and sundry Internet infrastructure components outside of SEOlytics own facilities does not belong to SEOlytics’ area of responsibility.
7. The information generated by the Service provides a correspondingly precise evaluation of the essential data based on the level of technology. Theses are approximated values. Unavoidable vagueness contingent on technology shall not be considered non-conforming or defective performance (for instance based on different Internet technologies and source counting parameters evaluated with the Service), as well as deviations and restrictions resulting from Customer individual preferences.
8. SEOlytics’ contractual duty of performance does not encompass the achievement of any particular economic or commercial success. SEOlytics does not warrant that the Service is fit for any particular purpose intended by the Customer beyond the respectively stipulated services or performance in the description of services, including without limitation that the Service will precipitate any particular SEO result or that the Service is compatible or usable with other programs or services.
9. SEOlytics is not directly affiliated with any search engine business operators so that SEOlytics has no influence over the compilation of search results, page rank-ings, or the assimilation of websites in the search index.
10. SEOlytics may delegate any or all of its contractual performance hereunder to third parties. SEOlytics’ legal and contractual liability shall nevertheless remain unaffected.
IV. Price and Payment
1. A monthly fee shall be due and payable for use of the non-gratuitous variant of the Service, which shall be debited monthly from the account provided by the Customer or otherwise settled with the Customer using other stipulated means.
2. All listed prices are net prices to which the legally applicable value-added tax amount must be added.
3. SEOlytics’ receivables shall be due upon issuance of the invoice and are payable within 14 days without deduction. In the event of payment default SEOlytics may discontinue service until all outstanding receivables have been paid. This notwithstanding, SEOlytics’ additional legal claims and rights shall not be affected.
4. The Customer shall only have a right to setoff, if the Customer’s counterclaim has been recognized by SEOlytics or has otherwise been judicially determined, res judicata. The Customer may exercise its right of withholding or retention to the extent its counterclaim is based on the same contractual occurrence or trans-action.
V. Customer Rights and Obligations
1. The Customer is responsible for the data furnished by the Customer or the Customer’s agent for processing through the Service. SEOlytics is under no obliga-tion to check the accuracy or sufficiency of the data.
2. The Service provides data generated by technical analysis without verification of any legal sufficiency. SEOlytics does not warrant that further utilization of the information generated through use of the Service is legally permitted. The Cus-tomer is hereby notified that the use of copyrighted or protected names held by third parties (in particular trademarks or rights to the use of name) intended for the optimization of the search engine may infringe on such third party rights. Therefore, it is the Customer’s responsibility to verify whether the evaluation results, proposed actions and SEO measures have violated legal provisions or infringed upon the rights of third parties in any given case. SEOlytics shall not be held liable for any legal violations and any consequences thereof attributable to measures undertaken by the Customer.
3. The Customer may not misuse SEOlytics’ Services. In particular it is prohibited to:
• Disseminate damage causing software, such as viruses, worms, trojans or otherwise use such within the scope of using the Service;
• Attempt to covertly or improperly collect or process data;
• Use the Services and results of the Service for spam e-mails, chain letters or other unsolicited contents, or for prohibited purposes;
• Publish personal data from third parties, in particular names, addresses, telephone or fax numbers, or e-mail addresses without the consent of the party concerned, or otherwise collect or process such information with the intent of abuse.
4. The Customer’s use of the Service may not violate applicable law, breach contractual provisions and in particular not infringe upon third party rights (e.g. personality rights, copyrights, intellectual property rights, or other rights).
5. The Customer shall indemnify and hold SEOlytics harmless from all damage or loss that accrues because of legal violations attributable to the Customer. Such indemnification shall also include the reasonable costs of any legal defense, which shall not exceed any amounts permitted by law.
6. The Customer promises only to use password-protected entries itself. Access information must be kept confidential and secure from unauthorized access. SEOlytics must be notified immediately in the event of misuse or any suspicion of misuse. SEOlytics shall be entitled to restitution from the Customer for all damage and expense arising from or in connection with the abusive use of the Service that is attributable to the Customer.
1. The Customer shall receive a license to use the Service for the contractually stipulated duration and in the contractually stipulated scope – upon selection of the non-gratuitous variant of our Service contingent upon the proper payment of the license fee. Unless consented to by SEOlytics or in accordance with the agreement for use reached with SEOlytics, any copying, downloading, distributing, selling, and saving of the contents of the Service shall be prohibited.
2. The Customer may use the Service for its own purposes of SEO. A use of the Service for others (in particular for purposes of SEO on behalf of third parties) is prohibited, unless otherwise expressly agreed to.
VII. Termination of License
1. The term of the license shall be perpetual, unless otherwise provided for in other applicable special terms and conditions of use for the respective Service.
2. The license for Services, which require registration, shall be perpetual and may be terminated without cause upon 14 days’ notice by either party expiring at months’ end. This shall not affect any termination for cause without notice.
3. Termination by the Customer must be made in writing at the address posted on SEOlytics’ webpage under Imprint at www.seolytics.com.
4. Unless otherwise agreed to, SEOlytics may upon termination of the license delete data that has been collected using the Service.
5. SEOlytics may block customers who have terminated for cause from using its Service again. We may save the data required to maintain such a block for a period of up to 2 years after termination of the license.
6. SEOlytics may completely discontinue the provision of services. In such an event all existing customers shall be informed within a reasonable time before discontinuance of the Service. In such an event customers must save their requisite data and information contained in their respective accounts. After expiration of this period all customer data will be erased. Any prepayments made by customers shall be proportionately refunded.
1. SEOlytics shall be held liable for intentional and grossly negligent misfeasance pursuant to law. This notwithstanding SEOlytics shall only be liable to the Cus-tomer for a breach of a material contractual obligation (cardinal obligation) as well as for damage or loss arising from death, personal injury or harm to health, and any assumed guarantees. Material contractual obligations are those that are necessary for performance under the contract as well as those upon which the Customer would reasonably rely as a contractual partner. Upon a negligent breach of cardinal obligations, liability shall be limited to damage or loss that is customary and foreseeable. There shall be no liability for lost profits.
2. Contractual damages claims from entrepreneurs or businessmen shall be barred after one year from the date the claim arose, provided that there is not a shorter statute of limitations period provided by law.
3. This notwithstanding, the provisions contained in the German Product Liability Act shall not be affected.
4. SEOlytics shall only be held liable for any loss of data and/or programs to the extent of the cost and expense incurred, provided that the Customer regularly and appropriately saved its data and made adequate assurances that data that has been lost could be restored with reasonable effort. This limitation of liability shall not apply in cases of intentional or grossly negligent misfeasance.
5. SEOlytics does not warrant that the results generated by the Service and in particular any use within the Customer’s business do not infringe on intellectual property rights of third parties (including but not limited to trademarks, templates, patents). SEOlytics is not obligated to conduct an interference search, unless this has otherwise been separately agreed to in writing.
6. SEOlytics shall assume no liability for losses occurring through use, interference or unavailability of contents and/or services or the loss of data, which arise by virtue of an Act of God or other circumstances beyond SEOlytics’ sphere of control.
7. SEOlytics shall not be liable for damage causing events, which have occurred in the telecommunication provider’s transmission lines or in the telecommunication provider’s switchboard.
8. The limitations provided for above in subsections 1 through 7 shall also apply to SEOlytics’ legal representatives, governing bodies and agents, if claims are assert-ed directly against such and also analogously for Customer claims for expense reimbursement.
IX. Customer Cooperation
1. The Customer must inform us about all material information with respect to each order and seasonably notify SEOlytics about any problems or required changes. SEOlytics may regard information provided by the Customer as true and complete and shall not be obligated to verify anything. However if any inaccuracies come to SEOlytics’ attention, SEOlytics shall inform the Customer thereof. Customer instructions must be issued in a timely manner so that a reasonable period of time is available to implement them.
2. The Customer shall only furnish SEOlytics with those templates and specifica-tions for use by SEOlytics under the contract that will not infringe upon any third party rights. In this regard the Customer shall indemnify and hold SEOlytics harm-less from all claims and rights of third parties. Indemnification shall also include the cost and expense of a reasonable legal defense to the extent provided for by law.
3. The Customer shall make sure that all requisite conditions are established within its business in order to properly receive the Services rendered. This especially affects any requisite hardware and software to the extent this is not an express component of the Service to be rendered by SEOlytics.
4. If the Customer uses the Services outside of the Federal Republic of Germany, the Customer shall be responsible for verifying whether or not such use comports to applicable law. SEOlytics shall not be held liable for a breach of foreign law or an infringement of intellectual property rights outside of Germany.
X. Special Provisions for Gratuitous Services
The following provisions shall apply to the use of products and services provided by SEOlytics free of charge or for test purposes (hereinafter collectively referred to as “Free Products”) in contravention of the above provisions:
1. Free Products are provided to the Customer free of charge and exclusively for non-commercial use. Testing serves only to evaluate and is regarded as non-commercial.
2. SEOlytics reserves the right to discontinue, or restrict or alter the scope of functionality of Free Products at any time.
3. SEOlytics is gratuitously furnishing the Free Products in the respectively provided for form. Use by the Customer shall occur at the Customer’s own risk and excludes any rights by the Customer for application support or removal of defects.
XI. Data Protection
1. SEOlytics saves and processes Customer personal data, where applicable, to the extent this is necessary to finalize the contract and for SEOlytics’ contractual performance.
2. With the software in its account for SEO the Customer can collect and deposit data. In doing so the Customer must ensure that data protection regulations are complied with, especially those provisions restricting unauthorized disclosure to third parties.
3. As a tool the Internet is a system that is open to the public. If the Customer divulges information about itself using the Internet, then the Customer does so at its own risk. Transmitted data can be lost or fall into the hands of unauthorized individuals. SEOlytics, however, safeguards program-relevant information furnished within its system according to customary standards and legal provisions.
4. We will not save the contract and it cannot be re-retrieved after the conclusion of the order process. The Customer has the option of printing these standard terms and conditions and the information about the order before sending its order and shall receive an e-mail after sending the order, wherein the Customer’s order will be detailed.
XII. Miscellaneous Provisions
1. Contracts are available in German and English. However for the interpretation of the terms and conditions of the contract as well as for the rights and obligations of the contractual parties only the German version of these standard terms and conditions shall be used.
2. German law shall be applicable, even if SEOlytics Services are used outside of the Federal Republic of Germany. To the extent the United Nations Convention on Contracts for the International Sale of Goods (CISG) has been ratified and adopted into German law for customers residing outside of the territorial jurisdiction of Germany and would otherwise be applicable, it is hereby excluded.
(last Update 5th June 2012)