General Terms and Conditions Ryte GmbH

Effective 17.05.2022 | Previous versions

Please note: The German General Terms and Conditions are binding.

1. Preamble and Conclusion of Agreement

1.1. The Provider is a software manufacturer and provides a cloud-based software platform that analyzes websites in order to uncover potential for improvement to optimize the website user experience.

1.2. The Provider will make a binding offer or accept the Customer´s binding offer only if the Customer is a company or a person engaged in the exercise of its trade, business or profession. The Agreement can then be concluded under the conditions contained in this document in accordance with section 1.3 or section 1.4 as follows:

1.3. If the Agreement is concluded via an Order Form, the transmission of the Order Form is the binding offer of the Provider to conclude a Agreement with the Customer in accordance with the provisions of this Agreement. The Customer is entitled, but not obliged, to accept this offer. Acceptance is declared by signatures of the Customer on the Order Form and electronic or postal transmission of the signed Order Form. Alternatively, acceptance can also be made by a confirmatory e-mail without signed return.

1.4. If the Agreement is concluded online, clicking on a button with the description "buy now" or a description with corresponding meaning is the binding contractual acceptance of the Customer to conclude a Agreement with the Provider in accordance with the provisions of this Agreement.

2. Definitions

2.1 Admin User" is an Authorized User who has the necessary rights to create additional accounts for the Customer for other Authorized Users.

2.2 "Authorized User" means a person who is authorized to have access to the Software and to view and/or edit Content in the Software and who (i) may be Customer himself if the Customer is a natural person, or (ii) if the Customer is a legal entity, an employee and/or contractor of the Customer who has been given access to the Software on the Customer's behalf as part of providing services to the Customer.

2.3 "Order Form" means an Order Form provided by the Provider to the Customer containing the Provider's binding offer to enter into a Agreement with the Customer in accordance with the terms of this Agreement.

2.4 "Crawled URLs" are all URLs on one or more of the Customer’s websites or on third-party websites that are crawled by the Provider in order to analyze the respective website for the Customer.

2.5 "Content" means all Content that the Customer and an Authorized User processes in the Software, including imported data from Google Search Console or from Google Analytics or Google Webmaster Tools or other systems connected by the Customer, but not limited to data in the form of text, images or other Content.

2.6 "Product Documentation" means a document or website on which the Provider describes the features and system requirements of the Software. 

2.7 "Projects" are areas within the Software that can be defined by the Customer and are assigned to a specific domain. 

2.8 "Sessions" are website visits that can be assigned to a unique user. A session can consist of several clicks and ends 30 minutes after the user's last interaction. The number of Sessions according to the Customer's tracking tool is decisive.

2.9 "Software" means the software product defined in the Product Documentation with the characteristics agreed in this Agreement.

2.10 "Affiliate" means any company or business entity that is controlled by or controls or is subject to joint control with a party to this Agreement. In this context, "control" means the direct or indirect shareholdership of more than 50% (fifty percent) of the voting shares of a company or, in the absence of a shareholder of more than 50% (fifty percent) of the voting shares of that company, the power to exert influence by directly or indirectly determining or defining the management and the business principles of that company. For the avoidance of doubt, holding companies, parent companies, sister companies and subsidiaries are considered Affiliated companies.

2.11 "Agreement" means this Agreement, which includes any Order Form and/or Product Documentation and/or terms and conditions set forth on the Provider's website, where further information about the Features is available.

2.12 "Confidential Information" means information that is explicitly designated as confidential or that constitutes a trade secret within the meaning of the Trade Secrets Act.

2.13 "Commencement" means the date on which this Agreement begins.

2.14 "Working Days" are weekdays from Monday to Friday with the exception of public holidays at the registered office of the Provider and December 24th and December 31th.

3. Obligation of the Provider

3.1 The Provider grants the Customer access to use the Software via the Internet by providing account access data for an Admin User with the restrictions in accordance with Section 5.

3.2 The Provider is not obligated to establish and maintain an internet connection between the Provider's server and the Customer's internet access point.

3.3 The elimination of errors and damage caused by improper handling by the Customer, by the influence of third parties or by force majeure is not the subject of this Agreement but can be commissioned as Professional Services in individual cases. 

3.4 The Provider is entitled to engage subcontractuors within the scope of the provision of services. 

4. Support and Service-Level

The Provider shall provide support in accordance with Appendix 1.

5. Scope of License; IP

5.1 From the Commencement of the Agreement, the Provider grants the Customer a non-exclusive, non-transferable, non-sublicensable worldwide, irrevocable (during the term) right to use the Software within the limits of this Agreement.

5.2 The license is limited to the use for the Customer's own business purposes. Own business purposes means in particular that the Customer himself is responsible under media law for the website to be analyzed and that his name is mentioned in the imprint of the website. In particular, the Provider may also define license restrictions in the order process or the Order Form. In particular, such license restrictions may refer to a maximum number of Crawled URLs, a maximum number of crawled domains, a maximum number of Authorized Users, a maximum number of separately displayed Projects, as well as a maximum number of Sessions per Agreement month. The Provider is entitled to use information available in the Customer account to check whether the use of the Software is covered by the scope of the license. 

5.3 The number of Authorized Users subject to remuneration will be calculated based on the number of Authorized Users assigned to the respective Customer account. 

5.4 The Software license may only be sublicensed to Affiliated companies of the Customer with the consent of the Provider.

5.5 The Provider is entitled to use information provided or generated by the Customer or processed in the Software to improve the quality of the Software and the quality of the services offered by the Provider, unless third-party rights conflict with this.

6. Obligations of the Customer

6.1 The Customer may only use the Software for the contractual purpose defined in Section 1 and the contractual purpose defined in the Order Form. In particular, no programming code may be entered into the entry fields of the Software.

6.2 The Customer is obliged to access the Software exclusively via standard browsers (Chrome, Firefox or Safari) in the latest version.

6.3 The Customer must observe any rights of third parties when importing and processing data. In particular, the Customer may only connect Google Search Console if he himself is the account owner of Google Search Console or if the account owner has agreed to the connection. Furthermore, the Customer is obliged to ensure that only anonymized tracking data is imported into the Software. In particular, only data collected in anonymous form may be imported from Google Analytics or other tracking tools.

6.4 Upon first request, the Customer shall indemnify the Provider against all claims asserted by third parties against the Provider on the grounds that an action carried out by the Customer and/or Content provided by the Customer infringes their rights.

6.5 The Customer must always convey accurate information about his company and the use of the Software to the Provider at the time of  the conclusion of the Agreement and during the term of the Agreement and must inform the Provider if the transmitted information changes.

6.6 The Customer must keep the access data secret and confidential and may not pass them on to third parties and must ensure that Authorized Users do not pass on their access data to third parties.

6.7 The Customer is obliged to back up entered data outside the Software.

6.8 The Customer is obliged to provide the Provider, upon request, with all information that the Provider requires in order to be able to assess whether the scope of the actual use of the Software is covered by the license granted.

6.9 When using the Provider's APIs, the Customer is obliged to limit its API requests at the Provider's request in such a way that the existing server infrastructure is not overloaded by the Customer's API requests.

6.10 Data exported via the Provider's APIs may only be used by the Customer during the term of the Agreement and only for the Customer’s own business purposes. After the end of the Agreement period, exported data must be deleted by the Customer.

6.11 If the use by the Customer is limited in accordance with section 5.2, the Customer must convey to the Provider information about the circumstances that the Provider needs to calculate the remuneration payable according to this Agreement. If the Customer does not convey information about the number of Sessions on his website in breach of his obligation, the Provider is entitled to determine the number of Sessions with a third-party Provider who provides data on the amount of Sessions and about the extent of use of a website. The information provided by the third-party Provider shall then be deemed to be accurate between the parties.

6.12 In the case of doubts about the contractual conformity of the use of the Software license by the Customer, the Provider is entitled to inspect the trading books of the Customer himself or through a third party (e.g. lawyer, auditor, certified accountant or sworn accountant) in order to verify the correctness and completeness of the information provided and the use of the Software license. This inspection shall take place during normal business hours. If there is no concrete suspicion of intentional misconduct on the part of the Customer, the Customer will be notified in advance. The costs resulting from the review will be reimbursed to the Provider if deviations of the actual use to the contractually permissible use become apparent. The Provider undertakes to use the data and information obtained through the control only for the purpose of enforcing the claims arising from this Agreement or from its intellectual property.

6.13 If claims are asserted against the Customer due to the actual or alleged violation of third-party rights as a result of the contractual use of the Software for which the Provider may be liable, the Customer must inform the Provider immediately. The parties will coordinate the defense of such claims in close coordination, with the Provider taking the lead to the extent possible and permissible. The Customer supports the Provider. If, despite a reminder, the Provider does not issue instructions regarding the appropriate defense within a reasonable period of time, the Customer is entitled to treat the claims asserted against him at his discretion without further consultation with the Provider.

7. Term

7.1 This Agreement has the agreed initial term and is extended by a further term of the same duration if the Agreement is not terminated with a notice period of 14 days to the end of the term. 

7.2 Any termination must be in writing to be effective. The text form (e.g. email) is sufficient for the written form in this respect.

7.3 The right of both contracting parties to terminate the Agreement for good cause remains unaffected by the above rules.

8. Remuneration

8.1 The invoice for the agreed license fee will be issued at the beginning of each term in advance for the respective term. The license fee is due upon receipt of the invoice and is to be paid by the Customer without deductions within 30 days of the invoice date. 

8.2 If the Customer exceeds a license restriction within the meaning of Section 5.2, he must pay an additional fee for the exceedance in accordance with the respective Agreement, which corresponds to his actual use. 

8.3 If the Customer is delayed with a contractual payment, the Provider may block the Customer's access to the Software.

8.4 The Provider transmits his invoices to the Customer by e-mail.

8.5 All prices indicated on the website and in the Order Form are net prices and do not include VAT.

8.6 If an invoiced amount has not been received by the Provider by the due date, default interest will be due in accordance with the statutory provisions, at an annual rate of nine percentage points above the base interest rate of the European Central Bank.

9. Limitation

9.1 Within the scope of this Agreement, the Provider shall only be liable for damages (a) caused intentionally or through gross negligence by the Provider or its legal representatives or vicarious agents or (b) resulting from injury to life, body or health as a result of a breach of an obligation of the Provider or one of its legal representatives or vicarious agents. The Provider shall also be liable (c) if the damage has arisen as a result of the breach of an obligation of the Provider, the fulfillment of which makes the proper execution of this Agreement possible and on the observance of which the Customer regularly relies and may rely (cardinal obligation).

9.2 In the cases referred to in paragraph 1, letters (a) and (b), the Provider is liable in terms of the amount within the scope of the statutory scope of liability. In all other respects, the claim for damages is limited to the contractually foreseeable damage. The parties agree that a damage of a maximum of EUR 100,000 is foreseeable as  typical for the Agreement. If the Customer is threatened with damage that may exceed this amount, the Customer is obliged to draw the Provider's attention to this immediately.

9.3 In cases other than those referred to in paragraph 1, the liability of the Provider is excluded regardless of the legal ground.

9.4 The liability regulations in the preceding paragraphs also apply to personal liability of the organs, employees and vicarious agents of the Provider.

9.5 As far as liability arises under the Product Liability Act from the assumption of a guarantee or due to fraudulent deception, it remains unaffected by the above liability regulations.

10. Confidentiality

10.1 The parties agree to maintain confidentiality about Confidential Information. This obligation shall survive termination of this Agreement.

10.2 Excluded from this obligation are such Confidential Information,

10.2.1which were demonstrably already known to the recipient at the time of conclusion of this Agreement or become known by third parties thereafter, without violating a confidentiality Agreement, legal regulations or official orders;

10.2.2 which are public knowledge at the time of conclusion of this Agreement or are subsequently made public, unless this is due to a breach of this Agreement;

10.2.3 which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the recipient obliged to disclose will inform the other party in advance and give it the opportunity to take action against the disclosure.

10.3 The Parties will only grant access to Confidential Information to those Consultants who are subject to professional confidentiality or who have previously been subject to obligations equivalent to the confidentiality obligations of this Agreement. Furthermore, the parties will only disclose the Confidential Information to those employees whom they need to know for the execution of this Agreement and will oblige these employees to maintain confidentiality to the extent permitted by labor law for the period after their departure.

11. Privacy

Part of these GTC is the  Data Protection Agreement provided underhttps://info.ryte.com/downloads/DPA_TOMs_Ryte_EN.pdf. The Customer is obliged to sign the Data Protection Agreement and to send it to the Provider signed in writing or as a signed scan.

12. Reference Naming

The Provider is entitled to name the Customer including company name and logo for reference purposes on the Provider's website and in offline marketing materials such as flyers and product presentations.

13. Final Provisions

13.1 This Agreement, including its annexes and the elements expressly incorporated, governs the Agreements between the parties conclusively and completely. 

13.2 German law shall apply to the exclusion of the provisions of international private law and the UN Convention on Agreements for the International Sale of Goods.

13.3 For all disputes arising out of or in connection with this Agreement (including those relating to its validity), the courts in Munich shall have exclusive jurisdiction in the first instance.

13.4 Changes and additions to this Agreement as well as a waiver of a right under this Agreement must be made in writing in order to be effective. This also applies to the waiver of the text form requirement.

13.5 The Provider is entitled to change the GTC as far as the changes are reasonable for the user. Changes to the GTC will be notified to the user in writing, by e-mail or in any other suitable manner at least one month before the amended GTC come into force. The changes shall be deemed approved and binding upon entry into force for an existing contractual relationship if the user does not object either in writing or by e-mail within one month of receipt of the notification of change. The user will be specifically informed of this consequence when notifying the change.

13.6 The Provider is entitled to transfer this Agreement including all rights and obligations from this Agreement to third parties.

13.7 Should any provision of this Agreement be invalid or unenforceable in whole or in part, or should it later lose its validity or feasibility, or should a loophole become apparent, this shall not affect the validity of the remaining provisions. The parties undertake to replace the invalid or unenforceable provision or to fill the loophole with an appropriate provision which, to the extent legally permissible, comes closest to what the parties wanted or would have wanted according to the meaning and purpose of the Agreement if they had known the ineffectiveness or the loophole. If the invalidity or unenforceability of a provision is based on a measure of performance or time (deadline or deadline) specified therein, the legally permissible measure closest to the provision shall be agreed.

Appendix 1: Support and Service Level Agreement

Appendix 1: Support and Service Level 

1. Subject of regulation

The following provisions of this annex specify the services provided by the Provider in accordance with the Provider's General Terms and Conditions (hereinafter: "Main Agreement"). All product specifications refer to the quality of the Software owed by the Provider, in this Appendix hereinafter: "Contractual Services". Impairments in the area of data transmission that are not caused by the Contractual Services of the Provider, in particular a disruption of the internet or the internet connection of the Customer, are not taken into account.

2. Support and Support Hours

(1) The Provider shall provide support in the event of errors in the Contractual Services based on this Annex during the support hours on working days (at the Provider's registered office) between 9:00 a.m. and 5:00 p.m. CET.

(2) Support is provided by email or via a chat system.

(3) Further information about the product and further support in its use can be obtained by the Customer via the Help Center at https://intercom.help/ryte/de/. Beyond that, the Provider is not obligated to provide a user manual. 

3. Updates

The Provider will continuously update the Software during the term of the Agreement and then fulfills its obligation to perform by making the updated version available.

4. Availability

(1) The Provider offers an availability of 98% on an annual average. 

(2) The Software is available if the use of the Software is possible.

(3) When calculating the actual availability, downtimes not attributable to the Provider shall be deemed to be available times. These harmless downtimes are

(i) maintenance or other services agreed with the Customer that do not allow access to the application Software;

(ii) maintenance work that becomes unexpectedly necessary if this work was not caused by a breach of the Provider's obligations to provide the Services (force majeure, in particular unforeseeable hardware failures, strikes, natural events, etc.);

(iii) Downtimes due to virus or hacker attacks, as far as the Provider has taken the agreed or, in the absence of an agreement the usual protective measures;

(iv) Downtime for the installation of urgently needed security patches;

(v) Downtime caused by third parties (persons not attributable to the Provider).

(4) Downtimes for scheduled maintenance work and data backups, if these are carried out in the period from 0:00 a.m. to 6:00 a.m. and have been announced to the Customer at least 7 days before the work is carried out. The announcement can be made in text form or as a dialogue message in the front-end system. 

5. Dealing with errors

(1) The Customer must immediately report in text form any errors that occur and support the Provider in the error investigation and error correction within the scope of what is reasonable. An error message must be so specific that a reasonable third party can understand the error and reproduce it on the basis of the error message. 

(2) Errors in the Software components are processed via remote maintenance. 

6. Consequences

The above provision specifies the Provider's obligation to perform. The legal consequences in the event of failure to comply with the availability times shall be governed by the statutory provisions, unless otherwise specified in the main Agreement.