General Standard Terms and Conditions of Ubermetrics Technologies GmbH
As of July 31st, 2018
Art. 1 General Provisions, Scope of Application
These General Standard Terms and Conditions (hereinafter referred to as “Terms and Conditions”) shall apply to any present and future business relations between Ubermetrics Technologies GmbH (hereinafter “Ubermetrics”) and the customer (hereinafter “customer”). These Terms and Conditions shall not apply to any customers who are consumers as defined by Section 13 German Civil Code (BGB).
In particular, these Terms and Conditions shall govern the introduction, conclusion and performance of any contracts regarding the use of the services rendered by Ubermetrics Technologies GmbH.
(1) The contract is concluded between the customer and
Ubermetrics Technologies GmbH
Tel.: +49 30 577 021 30
Fax: +49 30 577 021 339
Managing Director: Patrick Bunk
Commercial Register No. HRB 136057 Berlin (Charlottenburg)
VAT ID No.: DE278581102
(2) A contract shall only be concluded if and to the extent that Ubermetrics acknowledges an order or commences the execution of the order. The specification of service (https://delta.ubermetrics-technologies.com/help.html?lang=en) as well as the individual Ubermetrics offer shall be the essential parts of every contract.
(3) No additional verbal agreements or differing written agreements exist.
(4) Any notices from Ubermetrics to the customer and all correspondence relating to the contract shall be via the administration login email address provided by the customer.
The customer shall be notified at regular intervals of any new software features, training courses and seminars in a newsletter sent to this email address.
Art. 2 Performance
(1) Ubermetrics enables the customer to use the client and application software specified in the specification of service with the range of functions detailed there and based on the functional requirements also stated there. The customer shall pay a fee to Ubermetrics according to Section 9. The client software shall be made available to the customer via the Web interface Ubermetrics Delta or the Ubermetrics API. Ubermetrics shall make the application software available for use at the transfer point indicated in the specification of service. The application software shall remain on the Ubermetrics server. Ubermetrics is not obligated to establish and maintain the data connection between the customer’s IT system and the transfer point operated by Ubermetrics. The agreed service volume (such as the number of mentions of all search agents per month, report configurations, alert rules, wall searches or API credits) are monthly limits meaning Ubermetrics is obligated to deliver the service in every dimension up to the contractual volume every month. The customer can directly influence the service volume through appropriate configuration. The mention volume can be restricted by keywords as well as language and source selection by the customer. All other dimensions as report configurations, alert rules, wall searches or API credits are configured directly by the customer and can thus be directly restricted by the customer. Unused service volume expires at the end of every month.
(2) Ubermetrics will use the latest version of the software to be delivered, provided that any software version changes are not unreasonable for the customer in due consideration of Ubermetrics’s interests.
Art. 3 Access, Authorisation and Rights of Use
(1) The customer shall receive an access authorisation (login) for every registered person consisting of a user name and password. The customer shall only disclose the user name and password to the respective authorised users and it shall otherwise be kept confidential. The authorised users shall only include the company signing the contract and its employees, but not any subsidiaries or other companies affiliated with the contracting party.
(2) The customer shall be granted a non-exclusive right, limited in time to the duration of the contract, to access the Ubermetrics software. The customer shall not be granted any other rights to the Ubermetrics software. The customer shall adhere to the number of persons stated in the offer who are authorised to simultaneously access the application software kept ready for the customer. The workstations used by the authorised persons shall meet the minimum technical requirements specified in the specification of service. The customer’s workstations shall be connected via a data connection to be set up by the customer in accordance with the instructions in the specification of service.
(3) The customer is not entitled to use the Ubermetrics software beyond the scope permitted and stated in the contract, permit any third parties to use it or make it accessible to any third parties. In particular, the customer is not permitted to reproduce, liquidate or permit the temporary use of and especially not to lease or lend the Ubermetrics software or any parts thereof. In each case in which the customer negligently enables any unregistered users or third parties to use the Ubermetrics software, the customer shall pay damages for each unauthorised user equalling 100% of the fee which would have been incurred upon conclusion of a contract during the agreed term of the contract and with the agreed search agents. Ubermetrics reserves the right to claim compensation for any further damage.
Art. 4 Participation by the Customer
(1) The customer is responsible for establishing a data connection between the intended workplace and the transfer point defined by Ubermetrics. Ubermetrics is entitled to redefine the transfer point at any time if this is required to enable the customer to utilise the services without any problems. In this event, the customer shall establish a connection with the redefined transfer point.
(2) The utilisation of Ubermetrics’ services in accordance with the contract is subject to compliance of the hardware and software used by the customer, including workplace computers, routers, data communication media etc., with the minimum technical requirements for the use of the current software version and familiarity with the handling of the software of the users authorised by the customer to use the application software. The customer shall only use such hardware and software to utilise the services of Ubermetrics which meets the minimum requirements indicated in the specification of service. The customer is responsible for configuring its IT system.
(3) If the use of the Ubermetrics software is impaired in such a manner that operation is hindered, the customer shall inform Ubermetrics without delay.
Art. 5 Introduction to the Software Functions
(1) Ubermetrics shall give the customer a one-off introduction as required to the operation of the software.
(2) Ubermetrics offers to provide additional support at an additional charge.
Art. 6 Service Level Agreement
(1) The customer is enabled to use the Ubermetrics software continuously, exceptions are subject to 6.4. Availability refers to the API which Ubermetrics provides at the transfer point specified in the specification of service.
(2) Availability shall be calculated on the basis of general availability for 24 hours per day, 7 days per week as a ratio of fault-free minutes to the total number of minutes in each month.
(3) A fault is deemed to have occurred if and when more than 5% of the API requests by the Ubermetrics Web client or direct requests by the customer are rejected by the server.
(4) Ubermetrics may interrupt the rendering of services for a defined period of time to perform scheduled maintenance work. Such periods shall be displayed no less than 48 hours in advance within the Ubermetrics software or transmitted to the customer in written form. If any important reasons exist which preclude such an interruption, the customer shall notify Ubermetrics of such reasons no less than 12 hours before the scheduled interruption; otherwise the customer shall not unreasonably withhold its consent to such interruptions.
(5) Ubermetrics shall deliver the application software to the customer at the transfer point with 95% availability for the customer’s use.
(6) If Ubermetrics fails to achieve the said level of availability, the customer may receive service credits as compensation:
for less than 95% but more than 90%, service credits for 3 days
for less than 90% but more than 80%, service credits for 7 days
for less than 80%, service credits for 30 days.
(7) A service credit entitles the holder to use the Ubermetrics range free of charge for one day, with the range of services booked when the interruption occurred. The said service credits shall constitute the sole and exclusive compensation for any shortfall in the warranted availability. Such credits shall be requested by the customer within a period of 30 days after the end of the month in which the shortfall in availability occurred; otherwise the customer shall have no claim for any service credits for that month.
Art. 7 Data Storage and Usage Rights
(1) Ubermetrics shall store the customer’s search results by automated processes for the duration of the contract. The customer may view and download lists of search results and statistics at any time.
(2) If the customer purchases comScore data via Ubermetrics, he cannot make comScore data available to third parties nor publicly present it. It can exclusively be used for internal business purposes. comScore data is marked as such by Ubermetrics. Third parties shall only be able to obtain the data, if they have a login to Ubermetrics with the access to the comScore data.
(3) YouTube data are only provided to the customer if the customer agrees to be bound by the YouTube Terms of Services for this data.
(4) The data delivered by Ubermetrics is regularly subject to copyright of third parties. The services provided by Ubermetrics via Ubermetrics Delta or the Ubermetrics-API consist of the aggregation and the analysis of data streams and explicitly not in the sale of licenses of the original data, unless stated otherwise in the contract. The customer acknowledges, that Ubermetrics is not permitted to grant itself any licenses for redistribution, storage, reproduction, delivery to third parties, or publication of the delivered mentions or snippets. Therefore, the customer is obliged to verify whether he needs further licenses and to acquire licenses directly from the copyright holder, if deemed necessary. This is explicitly necessary for mentions in TV, Radio and Print. The customer must consider in these cases the Terms of Services of the content provider when known and consider further, that replication of these snippets in many countries requires further special licensing from the copyright holders.
(5) Ubermetrics shall process work potentially protected by copyright, such as blog posts and articles, on behalf of the customer. If the customer becomes aware of any copyright infringement, it shall inform Ubermetrics without delay thereof. In this event or if a holder of a right directly requires Ubermetrics to shorten any mentions or implement any changes in the structure or data format, Ubermetrics is free to implement such changes or remove such mentions from all results lists.
Art. 8 Data Protection and Data Security
(1) Both Parties shall comply with the applicable data protection regulations, particularly including those applicable in Germany, and impose an obligation on their employees whose activities involve data processing to maintain data secrecy subject to GDPR or a comparable law.
(2) The customer’s personal data shall be collected, processed and stored for the purposes of contract implementation. Such data shall only be disclosed to any third parties to the extent required to carry out the order.
(3) If the customer collects, processes or uses any personal data itself or through Ubermetrics, the customer is responsible for ensuring that it is entitled thereto subject to the applicable regulations, in particular, any data protection regulations, the GDPR and any statutory storage periods.
(4) If the data to be processed are personal data, a case of contract data processing has been created and Ubermetrics shall comply with the customer’s instructions (e.g. to fulfil any obligations to delete or block data). Such instructions shall be given in writing and in due time.
(5) The services provided by Ubermetrics are explicitly not available to any national security authorities or companies that intend to use Ubermetrics on behalf of national security authorities and no customer may grant them access.
Art. 9 Fee
(1) The customer shall pay the fees for the commissioned Ubermetrics software features indicated in the offer of Ubermetrics.
(2) In case Ubermetrics provides additional services beyond contractual obligations, this does not legally bind Ubermetrics to deliver these in the future.
(3) If an overload in the Ubermetrics system occurs due to any grossly negligent or intentional acts by the customer in setting up the search agent, Ubermetrics is entitled to damages as compensation.
(4) Ubermetrics is entitled to increase the normal or listed prices for the contractual services to a reasonable extent to cover any increases in staff costs or other costs. Ubermetrics shall notify the customer of such price increases in written form; however, price increases shall not apply to those periods of time for which the customer has made payments. If the price increase accounts for more than 15% of the previous price paid, the customer is entitled to terminate the contract as a whole at the end of a calendar month by giving one month’s notice; if the customer exercises such right to terminate the contract, the non-increased prices shall be charged until the termination becomes effective. Within a period of three months after the conclusion of a contract, any price increases shall be excluded.
Art. 10 Fair Use
(1) The customer shall not be charged any additional costs if he exceeds the contractually agreed service volume (according to §2) in the current month and no automatic technical limitation is active. This regulation does not apply if the provided additional services lead to an overloading of the system or if the customer exceeds twice the agreed performance dimensions. Only then Ubermetrics is free to restrict or disable the corresponding extra service volume dimensions.
(2) Ubermetrics can only charge extra costs for extra service volume if 1. the customer requests extra service volume for two months in a row, 2. Ubermetrics may notify the customer not to provide these extra services without additional costs in the future and 3. the customer does not adapt the parameters exceeding the contractual limits within 4 weeks of this notification. Only thereafter Ubermetrics is entitled to charge the additional volume in accordance with the current price list of Ubermetrics.
(3) Even if the number of user logins is not limited, the total number of API calls from all users of a contract is limited to 100,000 API credits per month via the Ubermetrics Delta frontend. 10(1) and 10(2) apply for exceeding volume. These API credits are explicitly meant for users using the Ubermetrics Delta frontend and not for users using the Ubermetrics API for their own applications.
(4) Ubermetrics furthermore reserves the right to reject searches and other services if they are non-executable or unreasonable for Ubermetrics on technical or legal grounds. Ubermetrics will notify the customer in these instances. If the number of keywords is explicitly agreed in the contract, this number takes precedence over the following rules. Are keyword add-ons explicitly added to the contract, then these shall be considered in the following keyword bounds. Key phrases are a series of words associated only with spaces and delimited with quotation marks in Ubermetrics search agents. These key phrases are treated as keywords in the following. Keywords are disregarded in the calculation if exclusively used as an exclusion or if they are exact duplicates of a keyword already considered.
(4a) For contracts with a limited number of search agents, search agents are explicitly unreasonable for Ubermetrics if the average number of used keywords over all search agents belonging to the contractual relationship exceeds twice the number of keywords used on average per search agent throughout the Ubermetrics-system excluding contracts with explicitly stated number of keywords. The determining value is set to be the current value or the value at the time the contract was signed, whichever is better for the customer.
(4b) For contracts without a limited number of search agents, search agents are explicitly unreasonable for Ubermetrics if the relation of used keywords over all search agents belonging to the contractual relationship to the amount of commissioned mentions exceeds twice the relation of the number of keywords used on average to the overall mentions throughout the Ubermetrics-system excluding contracts with explicitly stated number of keywords. The determining value is set to be the current value or the value at the time the contract was signed, whichever is better for the customer.
(5) If a contract includes API-access without an explicit number of API calls it shall include 1,000 API credits for every usable keyword, subject to 10 (4) and only if the so calculated number exceeds 55,000 API-credits. These API-credits can flexibly be used for frontend activities as well as for API requests.
Art. 11 Duration of the Contract
(1) Upon expiry of the agreed duration of the contract, the contract shall be automatically extended for another 12 months unless terminated by giving notice no later than six weeks before the end of the last full contract month in the agreed fixed period.
(2) If no duration is defined in the contract, a minimum contract duration of 24 months normally applies, starting from the time of signature by the customer.
(3) If the customer books additional recurring services (upgrades) during a contract term, the respective main contract shall be automatically extended to the termination of the upgrade, unless that is after the contract term of the main contract. Every upgrade term of regularly recurring and not cancelled services is extended upon extension of the main contract to the term thereof.
(4) The right to affect a termination for cause shall remain unaffected.
(5) Any termination shall be made in writing.
Art. 12 Terms, Payment, Delayed Performance
(1) Any prices published verbally and/or in writing are not binding. Errors are excepted and the prices are subject to change at short notice. All prices shall be net plus statutory value added tax.
(2) The invoice shall be issued in advance for the full duration of the contract.
(3) During any default on payment by the customer, Ubermetrics is entitled to block the customer’s login data. If the customer defaults on payment for two consecutive months, Ubermetrics is entitled to terminate the contract without notice. Ubermetrics reserves the right to assert further claims for default on payment.
Art. 13 Modifications to the Terms of the Contract
(1) While retaining the scope of use which is the subject of the contract, Ubermetrics is entitled at any time to modify and adjust the specific wording of the terms of the contract. This shall exclusively and solely occur to guarantee a smooth procedure as well as the optimum utilisation of the Ubermetrics offer or if any change in legislation, supreme court decisions or the market situation or any technological changes or advancements or other equivalent reasons require such a modification or adjustment and if such modification or adjustment is not unreasonably detrimental to the customer.
If Ubermetrics intends to effect any change in the General Standard Terms and Conditions, the prices or essential information provided in the specification of service, for example, by raising the minimum requirements or restricting existing functions, the customer shall be notified of such changes no less than four weeks before they become effective in writing to the administration login email addresses provided by the customer to Ubermetrics. If the customer does not object in written form within a period of four weeks after receiving such notice of change, such changes shall be incorporated in the contract when they become effective. Ubermetrics shall expressly inform the customer of this consequence in the notice of change.
(2) Should any terms of contracts with external service providers for add-on modules, in particular, the TV, radio or print modules, change, Ubermetrics is entitled to discontinue the provision of the modules concerned as of the time of such change. Ubermetrics shall inform the customer thereof.
Art. 14 Liability for Defects and Warranty
(1) If the performance rendered by Ubermetrics is defective because its suitability for use in accordance with the contract is materially impaired, Ubermetrics shall be liable for any defects in title or quality pursuant to the statutory regulations. For any defects in the software existing upon delivery of the software to the customer, Ubermetrics shall only be liable if Ubermetrics is responsible for such defects.
(2) However, in any event Ubermetrics shall only be under an obligation to execute search orders conscientiously, but not to achieve any specific success. Ubermetrics does not assume any warranty for the correctness and completeness of results if due to any technical defects which were unknown to Ubermetrics upon conclusion of the contract or of which the customer was informed prior to the conclusion of the contract.
(4) The customer shall notify Ubermetrics of any defects without delay. Any warranty claims shall become statute-barred after one year.
Art. 15 Standard of Liability and Limitation of Liability
(1) Ubermetrics shall be liable for intent and gross negligence subject to the statutory regulations.
(2) Ubermetrics shall be liable without restriction for slight negligence in the event of damage resulting from injury to life, limb or health. Otherwise, Ubermetrics shall only be liable for any breach of a material obligation under the contract (cardinal obligation). In such cases, Ubermetrics shall only be liable for the foreseeable damage which is typically expected to occur.
(3) In the event of slight negligence, liability shall be limited to the amount of the fee agreed upon conclusion of the contract which has become due during the agreed term of the contract until the time of the damage.
(4) Liability subject to the regulations of the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
(5) It is hereby clarified that Ubermetrics does not check the searched and linked articles for computer viruses; any liability in this respect shall be excluded.
Art. 16 Force Majeure
(1) Ubermetrics shall be released from the obligation to render performance under this contract if and to the extent that the non-performance of services is due to the occurrence of any circumstances of force majeure after the conclusion of the contract.
(2) Either Party to the contract shall notify the other Party to the contract of the occurrence of a case of force majeure in written form without delay.
Art. 17 Final Provisions
(1) The laws of the Federal Republic of Germany shall apply. The provisions of the UN Sales Convention and any legal rules referring to a different legal regime shall be inapplicable. If copies of these General Standard Terms and Conditions have been prepared in any other language than German, only the German version shall be binding exclusively for Ubermetrics and the customer.
(2) Any modifications and amendments to and any notice of termination of contractual agreements shall be made in writing; the same shall apply to the revocation of the written form requirement unless these Terms and Conditions provide written form.
(3) Berlin shall be the place of performance. Berlin shall be the place of jurisdiction for any disputes arising from or in connection with the contractual relationship existing between Ubermetrics and the customer.
(4) Should any provision or provisions be or become ineffective in whole or in part, the effectiveness of the remaining provisions shall remain unaffected thereby. In this event, the Parties undertake to replace such an ineffective provision with such an effective provision which comes closest to the economic purpose of the ineffective provision. The same shall apply to any loopholes in the agreements.
The previous version of our Terms and Conditions can be found here.