Terms & Conditions

For customers from Germany and Rest of the World

Software as a Service Terms and Conditions (For US and Canada)

Last updated: Feb 1, 2022

These Software as a Service Terms and Conditions (together with any applicable Offer issued hereunder, the “Agreement”), effective as of the date set forth on an applicable Offer (“Effective Date”), is between Searchmetrics, Inc., a Delaware corporation, with an address at 1825 S. Grant St, Suite 09-101, San Mateo, CA 94402 (“Searchmetrics”), and the Customer named in the Offer (“Customer”).  Searchmetrics and Customer agree as follows:

1. Scope of Agreement.
   The Agreement sets forth the terms and conditions under which Searchmetrics will provide access to the Software and/or Searchmetrics API (as defined below). Professional Services and Content Services (as defined below) may be ordered subject to the Searchmetrics Professional Services Terms and Conditions.
2. Definitions.
   “Affiliate” with respect to a party to this Agreement, means any person or entity that directly or indirectly controls, is controlled by, or is under common control with that party (but only during the period in which that person or entity meets these requirements), where “control” means the right to exercise, directly or indirectly, the power to direct or cause the direction of the affairs, policies or management of a person or entity, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.“Confidential Information” means information that one party (the “Disclosing Party”) provides to the other party (“Receiving Party”) during the term of this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.“Content” means any text, video or other audio and sound data or images.“Content Services” means services provided to Customer that are related to Content, including without limitation content creation, content optimization, and content strategy.“Customer Content” means all Content created through or submitted to the Platform by Customer.“Improvements” means any upgrades, updates, improvements, enhancements, modifications, or derivative works.“Intellectual Property Rights” means any copyrights, trademarks, patents, trade secrets, and other intellectual property or proprietary rights arising under United States and/or foreign laws, statutes, treaties, conventions, or the like.“Offer” means a document, prepared and transmitted to Customer by Searchmetrics, that provides Customer with the opportunity under this Agreement to purchase Software licenses or API access covering the period of time specified in such Offer.“Platform” means the software platform operated by Searchmetrics to provide the Services and any functionality accessed or made available through such platform;“Professional Services” means consulting services provided to Customer, including without limitation analysis, audits, strategic planning, workshops, and supplemental training.“Searchmetrics API” refers to Application Programming Interface access to Searchmetrics Data.“Searchmetrics Data” means all data or other information made available to Customer through Customer’s use of and access to the Software and/or Searchmetrics API as permitted under this Agreement.“Searchmetrics IP” means the Software (including modules like Searchmetrics API or plug-ins), the Software Content, the Searchmetrics Data, the Platform and any Improvements to any of the foregoing and all related Intellectual Property rights like but not limited to copyrights, trademarks, patents and database rights, and excludes any Customer Content.

   “Searchmetrics Site” means app.searchmetrics.com, suite.searchmetrics.com or content.searchmetrics.com (whichever is applicable)

   “Services” means the services or assistance provided by Searchmetrics under these Terms and any applicable Offer;

   “Software” means the applicable Searchmetrics web-based software, such as Searchmetrics Suite^TM or Searchmetrics Content Experience^TM, (including any associated media, printed materials and online or electronic documentation) in the version made available by Searchmetrics under this Agreement.

   “Software Content” means all content (other than Searchmetrics Data) contained in the Software and their selection and arrangement, including all designs, text, graphics, video, information, music, and sound and other files, but not including Content subject to copyright or trademark of a Third Party or Customer Content.

   “Third Party” means a person or entity that is not Customer or any of Customer’s Affiliates, or Searchmetrics or any of Searchmetrics’ Affiliates.

   “User Data” means all data that Customer provides to Searchmetrics in connection with Customer’s access to the Software and/or Searchmetrics API, including, by way of example, the full name and business email address of user.

3. Grant of Rights.
   a. Access. Searchmetrics will provide Customer with the instructions to access the Software and/or Searchmetrics API (“Access Information”), as applicable. Customer is responsible for maintaining the confidentiality of the Access Information and for all activity conducted under such Access Information. Customer may provide access to its employees and officers and to its contractors and other representatives acting on its behalf (collectively, “Customer’s Representatives”), provided that the Customer remains liable for Customer’s Representatives’ access or use of the Software and/or Searchmetrics API not in accordance with this Agreement. Customer may not disclose or transfer the Access Information or otherwise provide any other person or entity with access to any part of the Software that requires use of the Access Information unless such person or entity is authorized under this Agreement. Customer undertakes to notify Searchmetrics immediately if it becomes aware that anyone has obtained the Access Information without authorization.b. Subject to the provisions of this Agreement and the applicable Offer, and in consideration of payment of the contractual fees set forth in the Offer, Searchmetrics hereby grants Customer a limited, non-exclusive, non-transferable license during the Term, without the right to grant sublicenses, and solely in the United States and Canada, to:i. access and perform the Software through the graphical user interface made available by Searchmetrics through the Platform, or access the Searchmetrics API (as applicable), solely for Customer’s internal business purposes; andii. display, download and export Searchmetrics Data received from the Platform or Searchmetrics API, as applicable, through the export and reporting functions provided by the Software (including modules like API or plug-in’s), solely for Customer’s internal business purposes.c. During the Term, Customer hereby grants Searchmetrics, its Affiliates, and its and their successors and assigns hereto a limited, revocable, non-exclusive, royalty-free, worldwide right and license to (i) display, download, modify, reproduce, use, perform, distribute, store, and transmit Customer’s User Data and Customer Content in connection with providing and maintaining the Services rendered to Customer and (ii) use Customer’s name and/or trade name for customer reference and marketing, advertising and promotional purposes.d. Reserved Rights and License Restrictions.  Customer agrees to comply with the provisions of this Agreement and all laws, rules, and regulations applicable to Customer’s use of the Searchmetrics IP. All rights not expressly granted to Customer in this Agreement are hereby reserved by Searchmetrics and its licensors. Without limiting the foregoing, except as expressly authorized in this Agreement, Customer may not and may not attempt to, nor may Customer permit, enable or request any Third Party to:i. Copy, modify, create derivative works of, reverse engineer, decompile, reverse compile, reverse assemble, translate, disassemble or access without Searchmetrics’ authorization any Searchmetrics IP;ii. Provide, transfer, sell, rent, lease, license, sublicense, distribute, disclose, display, or make available the Searchmetrics IP to any Third Party, or use the Searchmetrics IP for any purpose not expressly permitted under this Agreement, including for resale, aggregation or other commercial exploitation;iii. Allow access to any Searchmetrics IP by any user or Third Party other than Customer’s Representatives acting on its behalf and subject to the terms of this Agreement;iv. Remove, modify, or obscure any copyright, trademark, or patent notice, or other proprietary or restrictive notice or legend, contained in the Searchmetrics IP;v. Use any type of bot, spider, virus, clock, automated query, script, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb, or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to distort, delete, damage, or disassemble the Searchmetrics IP;vi. Use the Searchmetrics IP to develop, transmit, or store information that is unlawful, immoral, libelous, tortious, defamatory, threatening, vulgar or obscene, that is harmful to minors, or that infringes, misappropriates or otherwise violates Searchmetrics’ or any Third Party’s Intellectual Property Rights;vii. Use the Searchmetrics IP to act as a service bureau on behalf of, or to otherwise provide processing services or support to, any Third Party;

   viii. Use automated queries with the Platform, such as scripts, except that the automated query of data using the Searchmetrics API as described in the documentation (http://api.searchmetrics.com/documentation) is allowed, as applicable.

   ix. Copy or use any Content of a Third Party displayed within the Platform that is subject to copyright or trademark;

   x. Upload or copy and paste any Content into the Platform or use the Software and/or, Searchmetrics API in a way that breaches any law or infringes any organization’s or individual’s rights; or

   xi. Contest, challenge or otherwise make any claim or take any action adverse to Searchmetrics’ ownership of or interest in the Searchmetrics IP.

4. User Data.  Customer hereby represents and warrants that all User Data is accurate and complete. Customer further agrees to update any User Data as necessary to keep it accurate and complete, and that Customer will not represent itself as any other person or entity in connection with Customer’s access to or use of the Software and/or Searchmetrics API.
5. Ownership; Assignment.  Customer agrees that, as between Customer and Searchmetrics, Searchmetrics and its parent company Searchmetrics GmbH (whichever is applicable) is the exclusive owner of all right, title and interest in, to and under all Searchmetrics IP, including all Intellectual Property Rights in and to the Searchmetrics IP. Searchmetrics hereby reserves all rights in, to and under the Searchmetrics IP not expressly granted to Customer under this Agreement. If Customer acquires any rights (other than the rights and licenses granted in Section 3.b) in or to any Searchmetrics IP, Customer hereby irrevocably assigns all such rights to Searchmetrics. At Searchmetrics’ request and expense, Customer agrees to perform any and all further actions and execute any additional documents that Searchmetrics may deem necessary or desirable to evidence, protect or confirm Searchmetrics’ or its designee’s ownership interest in, to and under the Searchmetrics IP, including making further written assignments in a form determined by Searchmetrics. Any Content Services shall be provided according to a separate written agreement or annex to this Agreement. Content such as images that may be displayed within the Searchmetrics Content Experience^TM Platform are provided as examples and may be restricted by copyrights and trademark rights of Third Parties. Customer is responsible for ensuring that Customer Content does not violate the terms and conditions of this Agreement.
6. Audit.  Upon reasonable advance written notice from Searchmetrics, Customer agrees to allow Searchmetrics to inspect Customer’s records, accounts and books (including all log file data) relating to Customer’s use of the Searchmetrics IP to document that Customer is using the Searchmetrics IP in accordance with this Agreement and all applicable laws, rules and regulations.
7. Payment. Customer agrees to pay Searchmetrics all fees set forth in the applicable Offer. Unless otherwise specified in the Offer, all fees must be paid in advance in U.S. dollars, exclude applicable taxes, and are not subject to any deductions, credits or other set-offs. Any fees not paid when due will bear interest from the original due date until paid at a rate equal to the lesser of (a) 1.5% per quarter or (b) the maximum rate of interest allowed by law.
8. Term. The Term will extend automatically for subsequent 12-month Terms unless terminated with 30 days’ written notice prior to the end of the respective term. Notice of termination must be in writing (email is acceptable). Sections 3(c), 3(d), 5, 7, 9, 10, and 12-17 survive any termination of this Agreement.
9. Suspension and Termination.
   a. Suspension. Searchmetrics reserves the right to suspend Customer’s access to the Software and/or Searchmetrics API (without notice) if it determines in its sole discretion that Customer is in breach of section 3 or 15 of this Agreement or any applicable laws, rules, or regulations. Searchmetrics may suspend this Agreement in the event Customer fails to pay any fees payable under this Agreement and/or the Offer after receiving at least one notice of late payment with ten (10) days to cure such late payment. Searchmetrics is not liable to Customer for any loss or damage that may result from Customer’s inability to access the Software and/or Searchmetrics API.
   b. Termination.  Either party may, upon prior written notice to the other party, terminate this Agreement in the event of a material breach of this Agreement by such other party which remains uncured for a period of thirty (30) days after the breaching party receives notice of such breach.
   c. Effect of Suspension and Termination.  Without limiting any other provision of this Agreement, any suspension of this Agreement will not relieve Customer of its obligation to pay all fees agreed in the applicable Offer (including interest, if applicable), and Customer will be liable for any costs associated with any collection of fees, including attorneys’ fees and collection agency fees. Upon termination of this Agreement, all rights granted to Customer under this Agreement immediately cease, and Customer must delete or otherwise destroy all Access Information provided to Customer (and any copies thereof).
10. Trademarks.  Customer agrees that, as between Customer and Searchmetrics, Searchmetrics and its parent company Searchmetrics GmbH (whichever is applicable) owns all right, title and interest in and to all trademarks and service marks used on or in connection with the Searchmetrics IP (“Searchmetrics Marks”). Nothing in this Agreement grants Customer any right or license to use any Searchmetrics Marks. Customer may not use metatags or any other hidden text that incorporates any Searchmetrics Marks or any marks confusingly similar to any Searchmetrics Marks.
11. Third Party Websites.  The Software may contain links to websites controlled by Third Parties. Access to Third Party websites from the Software is at Customer’s own risk. Searchmetrics does not endorse or take responsibility for the content on other websites or the availability of other websites, and Customer agrees that Searchmetrics will not be liable for any loss or damage that Customer may suffer by using other websites. Customer is responsible for reading and complying with the terms of use and privacy policies that govern Customer’s use of Third Party websites.
12. Disclaimer.  SEARCHMETRICS PROVIDES THE SEARCHMETRICS SITE AND SEARCHMETRICS IP TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THIS AGREEMENT, SEARCHMETRICS DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SEARCHMETRICS SITE AND SEARCHMETRICS IP, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. cUSTOMER CONTENT IS THE SOLE RESPONSIBILITY OF CUSTOMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT SEARCHMETRICS DOES NOT ASSUME ANY, AND HEREBY DISCLAIMS ALL, RESPONSIBILITY AND LIABILITY FOR CUSTOMER CONTENT AND ANY MODIFICATIONS THERETO.
13. Limitation of Liability.  NEITHER PARTY TO THIS AGREEMENT NOR ITS AFFILIATES, NOR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, SHAREHOLDERS, AGENTS, LICENSORS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS, WILL HAVE ANY LIABILITY OR RESPONSIBILITY TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT AND/OR CUSTOMER’S USE OF OR INABILITY TO USE THE SEARCHMETRICS SITE OR SEARCHMETRICS IP, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. EACH PARTY’S TOTAL LIABILITY TO THE OTHER FOR ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR CUSTOMER’S USE OF THE SEARCHMETRICS SITE OR SEARCHMETRICS IP WILL NOT EXCEED THE AMOUNT THAT CUSTOMER PAID TO SEARCHMETRICS FOR USE OF THE SEARCHMETRICS SITE OR SEARCHMETRICS IP IN THE TWELVE (12) MONTH-PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.
14. Mutual Indemnification.
    a. Indemnification by Searchmetrics.  Searchmetrics shall defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a Third Party alleging that Customer’s use of the Searchmetrics Site or Searchmetrics IP as permitted hereunder infringes or misappropriates the patent, copyright, and trademark rights of a Third Party (a “Claim Against Customer“), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer; provided that Customer (a) promptly gives Searchmetrics written notice of the Claim Against Customer, (b) give Searchmetrics sole control of the defense and settlement of the Claim Against Customer (provided that Searchmetrics may not settle or defend any Claim Against Customer unless Searchmetrics unconditionally releases Customer of all liability), and (c) provide Searchmetrics with all reasonable assistance, at Searchmetrics’ expense. In the event of a Claim Against Customer, or if Searchmetrics reasonably believes that the Searchmetrics Site or Searchmetrics IP may infringe or misappropriate a Third Party’s Intellectual Property Rights, Searchmetrics may in its discretion and at no cost to Customer (i) modify the Searchmetrics Site or Searchmetrics IP so that they no longer infringe or misappropriate, (ii) obtain a license for Customer’s continued use of the Searchmetrics Site or Searchmetrics IP in accordance with this Agreement, or (iii) terminate Customer’s right to use such Searchmetrics Site or Searchmetrics IP upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the applicable portion of the remainder of the Offer term after the effective date of termination. If a court orders Customer to cease using part or all of the Searchmetrics Site or Searchmetrics IP in connection with a Claim Against Customer, Searchmetrics shall take the actions described in subpart (i) or (ii) of the preceding sentence, or if Searchmetrics cannot accomplish (i) or (ii) in a commercially reasonable manner, Searchmetrics shall take the actions described in subpart (iii) of the preceding sentence, all at no cost to Customer.
    b. Indemnification by Customer. Customer shall defend Searchmetrics and Searchmetrics’ Affiliates, and its and their respective officers, directors, employees, partners, shareholders, agents, licensors and representatives (“Indemnified Parties”), against any claim, demand, suit or proceeding made or brought against one or more Indemnified Parties by a Third Party arising from or based on Customer’s breach of this Agreement or alleging that Customer’s use of the Searchmetrics Site or Searchmetrics IP in violation of the terms of this Agreement infringes or misappropriates the patent, copyright, trademark or other intellectual property rights of a Third Party (a “Claim Against Searchmetrics”), and shall indemnify the Indemnified Parties for any damages, attorney fees and costs finally awarded against the Indemnified Parties as a result of, or for any amounts paid by any Indemnified Party under a court-approved settlement of, a Claim Against Searchmetrics; provided that the Indemnified Parties (a) promptly give Customer written notice of the Claim Against Searchmetrics, (b) give Customer sole control of the defense and settlement of the Claim Against Searchmetrics (provided that Customer may not settle or defend any Claim Against Searchmetrics unless Customer unconditionally releases the Indemnified Parties of all liability), and (c) provide to Customer all reasonable assistance, at Customer’s expense.
    c. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
15. Confidentiality.
    a. Confidential Information.  The parties acknowledge that, in the course of performing their obligations under this Agreement, each may receive Confidential Information. Confidential Information includes, but is not limited to, any information, technical data or know-how that relates to research, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, marketing, finances or trade secrets. Each party covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to exercise rights under this Agreement and who are bound by written agreement, with terms at least as restrictive as these, not to disclose Confidential Information, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Receiving Party’s use of information: (a) previously known to it without obligation of confidence, (b) independently developed by or for it without use of or access to the Disclosing Party’s Confidential Information, (c) acquired by it from a Third Party that is not under an obligation of confidence with respect to such information, or (d) that is or becomes publicly available through no breach of this Agreement. The Receiving Party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section.
    b. Destruction.  Within five (5) days after a Disclosing Party’s request, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information; provided, however, that the Receiving Party shall be entitled to retain archival copies of the Confidential Information of the Disclosing Party solely for legal, regulatory or compliance purposes unless otherwise prohibited by law.
16. Injunctive Relief.  The parties agree that any actual or threatened breach of Section 3 or Section 15 will constitute irreparable harm for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach or threatened breach. The parties agree that in the event of such breach or threatened breach, the aggrieved party will be entitled to seek immediate injunctive relief and may obtain an order restraining any threatened or future breach, without having to furnish proof of actual damages or posting a bond or other surety. Nothing in this Section 16 limits any remedies available to the aggrieved party at law or in equity for a breach of this Agreement.
17. Final Provisions.
    a. Governing Law and Venue.  This Agreement is governed by and will be interpreted in accordance with the laws of the State of California. The parties to this Agreement expressly exclude the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods. The parties to this Agreement unconditionally and irrevocably consent to the exclusive jurisdiction of the federal and state courts located in San Francisco, San Mateo or Santa Clara County, California and waive any objection with respect to those courts for the purpose of any action or proceeding arising out of or relating to this Agreement or the transactions contemplated by this Agreement, and further agree not to commence any such action or proceeding except in those courts.
    b. Notices.  All notices, requests, claims, demands and other communications regarding this Agreement must be in writing and
    (i)delivered in person, by reputable overnight courier services (with signature required) or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties to this Agreement at the addresses provided in the Offer; or
    (ii) sent by email to the other party’s notice email address set out in the Offer for the Customer and to contracts@searchmetrcis.com for Searchmetrics.
    c. Additional Terms.  This Agreement, including the Offer and any other terms and conditions agreed between the parties in writing, constitutes the entire agreement between Customer and Searchmetrics regarding its subject matter and supersedes any prior agreements or understandings between Customer and Searchmetrics relating to the same subject matter. If any provision of the Offer conflicts with the provisions of this Agreement, the provision contained in the Offer will govern to the extent of the conflict. This Agreement may not be amended or modified except by a written instrument signed by an authorized representative of each party to this Agreement. The failure by either party to this Agreement to exercise or enforce any right or provision of this Agreement does not constitute a waiver of that right or provision in that or any other instance. If any provision of this Agreement is invalid, unlawful, void or unenforceable for any reason, then that provision will (if possible) be modified to the minimum extent necessary to render it valid and enforceable and the remaining provisions will remain in full force and effect, so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to either party to this Agreement. This Agreement is personal to Customer, and Customer may not assign it without Searchmetrics’ express written consent. Any assignment in violation of this Section is null and void. As used in this Agreement, “includes” or “including” means “includes (or including), without limitation.”

Software as a Service Terms and Conditions (Germany and Rest of the World)

Last updated: Feb 01, 2022

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

1. Scope of Agreement This Agreement sets forth under which terms and conditions under which Searchmetrics will provide access to the Platform and/or Searchmetrics API (as defined below). Professional Services and Content Services (as defined below) may be ordered subject to the Searchmetrics Professional Services Terms and Conditions.These Terms shall only apply to businesses within the meaning of § 14 German Civil Code (BGB). A business is a natural or legal entity or legal partnership.These Terms apply exclusively. Any deviating, conflicting or additional terms and conditions of the Customer do not apply even if Searchmetrics provides services without expressly disputing such Customer terms and conditions. Additional terms and conditions of Customer shall only then become an integral part if Searchmetrics expressly consented in writing to their validity.The Customer accepts these Terms by placing an order. These Terms also apply to future business relationships, whether or not this is expressly restated by the parties.
2. Definitions “Affiliate” with respect to a party to this Agreement, means any person or entity that directly or indirectly controls, is controlled by, or is under common control with that party (but only during the period in which that person or entity meets these requirements), where “control” means the right to exercise, directly or indirectly, the power to direct or cause the direction of the affairs, policies or management of a person or entity, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise;“Confidential Information” means information or data that one party provides to the other party during the term of this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure;“Content” means any text, video or other audio and sound data or images;“Content Services” means services provided to Customer that are related to Content, including without limitation content creation, content optimization, and content strategy;“Customer Content” means all Content created through or submitted to the Platform by Customer;“Data Protection Laws” means Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 and the Data Protection Act 2018;“Fees” means payment to be made to Searchmetrics as set out in the Offer;“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing of, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;“Offer” means a document, prepared and transmitted to Customer by Searchmetrics, that provides Customer with the opportunity under this Agreement to purchase software licenses or API access covering the period of time specified in such Offer;“Platform” means the software platform operated by Searchmetrics to provide the Services and any functionality accessed or made available through such platform;

   “Professional Services” means consulting services provided to Customer, including without limitation analysis, audits, strategic planning, workshops, and supplemental training;

   “Searchmetrics API” refers to Application Programming Interface access to Searchmetrics Data;

   “Searchmetrics Data” means all data or other information made available to Customer through Customer’s use of and access to the Platform and/or Searchmetrics API as permitted under this Agreement;

   “Searchmetrics IP” means the software (including modules like Searchmetrics API or plug-ins), the Software Content, the Searchmetrics Data, the Platform and any improvements to any of the foregoing and all related Intellectual Property rights like but not limited to copyrights, trademarks, patents and database rights, and excludes any Customer Content;

   “Services” means the services or assistance provided by Searchmetrics under these Terms and any applicable Offer;

   “Software Content” means all content (other than Searchmetrics Data) contained in the Platform and their selection and arrangement, including all designs, text, graphics, video, information, music, and sound and other files, but not including Content subject to copyright or trademark of a third party or Customer Content; and

   “Term” means 12 months from the date stated in the Offer or as otherwise provided for in the Offer.

3. Conclusion of the contract
   a. Searchmetrics submits an Offer to Customer to conclude a contract.
   b. This Offer requires signature for acceptance by the Customer.
   c. The Agreement between the Customer and Searchmetrics will be concluded once the signed Offer has been received and accepted by Searchmetrics.
   d. If there is a conflict between the Offer and this Agreement, the Offer shall prevail.
4. Provision and Use of the Servicesa. Promptly following the conclusion of the Agreement, Searchmetrics shall provide the Customer with access to the Platform and/or Searchmetrcis API and any information or assistance reasonably requested to facilitate provision of the Services.b. During the Term Searchmetrics will provide to the Customer, the Services and access to the Platform.c. During the Term the Customer will provide Searchmetrics any information, assistance or access reasonably requested to enable the provision of the Services and ensure any information it provides to Searchmetrics is accurate and up to date.
5. Grant of rights
   a. Searchmetrics is the exclusive owner of all right, title and interest in connection with the Platform, the Services and the associated database and software, including all Intellectual Property rights.
   b. Searchmetrics grants Customer a limited, non-exclusive, non-transferable, global license during the Term, without the right to grant sublicenses, to:
   (i)access the Platform and/or the Searchmetrics API (as applicable), solely for Customer’s internal business purposes; and
   (ii)display, download and export Searchmetrics Data received from the Platform or Searchmetrics API, as applicable, through the export and reporting functions provided by the Platform (including modules like API or plug-in’s) solely for Customer’s internal business purposes.
   c. The data obtained through the Platform may be analysed and processed statistically. Searchmetrics is permitted, on an industry-specific and cross-sector basis, to consolidate aggregated and anonymised data and provide third parties access to those data. Searchmetrics is permitted to use the aggregated and anonymised data to improve its services. There will be no transmission of non-aggregated data in any event.
   d. Customer permits Searchmetrics to use Customer’s name for customer reference and marketing, advertising and promotional purposes, such permission can be revoked at any time in writing.
6. Access to Platform
   a. In accordance with clause 4 a Searchmetrics shall provide Customer with access to the Platform, each individually known as a (“User”). Customer will be provided a personal account on the Platform (“a User Account”), which can be accessed by entering a username and password and should not be shared.
   b. Customer shall immediately upon receipt of User Account check the Platform for operability and notify Searchmetrics immediately of any deficiencies.
   c. Customer is responsible for maintaining the confidentiality of the User Account and for all activity conducted by the User. Customer undertakes to notify Searchmetrics immediately if it becomes aware that anyone has obtained unauthorized access to any User Account.
   d. Customer is responsible for all activities conducted under the User Account. Customer is not liable for misuse of access information if there has been no breach of duty of care. In this event, Customer shall provide evidence that it is not responsible for the misuse of access information.
   e. Customer shall immediately inform Searchmetrics of any misuse of the Platform. In the case of any misuse, Searchmetrics may block access to the Platform until there is no longer any threat of any further misuse. If Searchmetrics becomes aware of any misuse of the Platform other than by notification by Customer, Searchmetrics will inform Customer immediately.
   f. Customer is responsible for ensuring adequate networks, Internet connections, telecommunication connections, hardware and software to use the Platform.
7. Data protection
   a. Searchmetrics and the Customer will comply with their respective obligations under Data Protection Laws. Each party will provide the other party any co-operation reasonably requested to enable the other party`s compliance with this clause 7 a.
   b. Neither Searchmetrics nor the Customer will not do or omit to do any act which may cause the other party to be in breach of any of its obligations under Data Protection Laws.
8. Intellectual property rights
   a. Searchmetrics is the sole and exclusive owner of all Intellectual Property Rights including but not limited to copyrights, patent rights, trade secrets, trademarks and other intellectual property rights, which are developed and provided for according to this Agreement including source codes, database, hardware or other material like analyses, developments, documentations and reports, as well as material for preparation.
   b. Copyright and other intellectual property rights that have not been developed according to this Agreement, but are made available nevertheless, remain exclusively with its relevant previous legal owner. Images, texts and other media in the Searchmetrics content experience on the Platform are solely for the purposes of illustrating the function of the product and may be subject to rights of a third party.
   c. Subject to a separate written agreement and an additional fee, the rights to content created specifically for Customer may be transferred from Searchmetrics to Customer.
   d. Reserved Rights and License Restrictions. Customer agrees to comply with the provisions of this Agreement and all laws, rules, and regulations applicable to Customer’s use of the Searchmetrics IP. All rights not expressly granted to Customer in this Agreement are hereby reserved by Searchmetrics and its licensors. Without limiting the foregoing, except as expressly authorized in this Agreement, Customer may not and may not attempt to, nor may Customer permit, enable or request any third party to:
   (i)Copy, modify, create derivative works of, reverse engineer, decompile, reverse compile, reverse assemble, translate, disassemble or access without Searchmetrics’ authorization any Searchmetrics IP;
   (ii)Provide, transfer, sell, rent, lease, license, sublicense, distribute, disclose, display, or make available the Searchmetrics IP to any third party, or use the Searchmetrics IP for any purpose not expressly permitted under this Agreement, including for resale, aggregation or other commercial exploitation;
   (iii)Allow access to any Searchmetrics IP by any user or third party other than Customer’s Representatives acting on its behalf and subject to the terms of this Agreement;
   (iv)Remove, modify, or obscure any copyright, trademark, or patent notice, or other proprietary or restrictive notice or legend, contained in the Searchmetrics IP;
   (v)Use any type of bot, spider, virus, clock, automated query, script, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb, or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to distort, delete, damage, or disassemble the Searchmetrics IP;
   (vi)Use the Searchmetrics IP to develop, transmit, or store information that is unlawful, immoral, libelous, tortious, defamatory, threatening, vulgar or obscene, that is harmful to minors, or that infringes, misappropriates or otherwise violates Searchmetrics’ or any third party’s Intellectual Property Rights;
   (vii)Use the Searchmetrics IP to act as a service bureau on behalf of, or to otherwise provide processing services or support to, any third party;
   (viii)Use automated queries with the Platform, such as scripts, except that the automated query of data using the Searchmetrics API as described in the documentation (http://api.searchmetrics.com/documentation) is allowed, as applicable.
   (ix)Copy or use any Content of a third party displayed within the Platform that is subject to copyright or trademark;
   (x)Upload or copy and paste any Content into the Platform or use the Software and/or, Searchmetrics API in a way that breaches any law or infringes any organization’s or individual’s rights; or
   (xi)Contest, challenge or otherwise make any claim or take any action adverse to Searchmetrics’ ownership of or interest in the Searchmetrics IP.
9. Fees and payment terms
   a. The Fees and payment terms are specified in the applicable Offer.
   b. All Fees are exclusive of VAT unless otherwise specified in the Offer.
   c. Unless otherwise agreed, all Fees are payable in advance without deductions.
   d. Any specific requirements regarding invoices must be provided to Searchmetrics at the time of signature of the Offer or immediately thereafter.
   e. In case of late payment Searchmetrics is entitled to:
   (i)receive interest at the statutory rate (§ 288 BGB) for the period of the payment delay.
   (ii)suspend access to the Platform. Searchmetrics’ claims to the contractually agreed fees remain unaffected. Any fees not paid when due will bear interest at the statutory rate (§ 288 BGB) during the period of payment delay.
   (iii)terminate the Agreement after notice has been given providing a period of at least two weeks to cure the non-payment. In the event of termination, Searchmetrics’ claims to the contractually agreed fees and claims for compensation remain unaffected. Any fees not paid when due will bear an interest at statutory rate (§ 288 BGB) during the period of payment delay.
10. Term. The Term will extend automatically for subsequent 12-month Terms unless terminated with 30 days’ written notice prior to the end of the respective term. Notice of termination must be in writing (email is acceptable). Sections 5 c, 8 d, 9 and 12 to 16 shall survive any termination of this Agreement.
11. Suspension and Termination.
    a. Suspension. Searchmetrics reserves the right to suspend Customer’s access to the Platform and/or Searchmetrics API (without notice) if it determines in its sole discretion that Customer is in breach of section 5 or 13 of this Agreement or any applicable laws, rules, or regulations. Searchmetrics may suspend this Agreement in the event Customer fails to pay any fees payable under this Agreement and/or the Offer after receiving at least one notice of late payment with ten (10) days to cure such late payment. Searchmetrics is not liable to Customer for any loss or damage that may result from Customer’s inability to access the Platform and/or Searchmetrics API.
    b. Termination. Either party may, upon prior written notice to the other party, terminate this Agreement in the event of a material breach of this Agreement by such other party which remains uncured for a period of thirty (30) days after the breaching party receives notice of such breach.
    c. Effect of Suspension and Termination. Without limiting any other provision of this Agreement, any suspension of this Agreement will not relieve Customer of its obligation to pay all fees agreed in the applicable Offer (including interest, if applicable), and Customer will be liable for any costs associated with any collection of fees, including legal fees and collection agency fees. Upon termination of this Agreement, all rights granted to Customer under this Agreement immediately cease, and Customer must delete or otherwise destroy all User Account login details provided to Customer (and any copies thereof).
12. Guarantees and liability a. Unless otherwise stipulated below, Searchmetrics is liable in accordance with applicable law.
    b. If Customer uploads content (texts, images, videos, audio files or other media content) to the Platform, Searchmetrics is not liable in regard to any third-party property rights. Clauses c. and d. below apply.
    c. Customer indemnifies Searchmetrics against any and all claims if the content uploaded by Customer infringes third-party intellectual property rights.
    d. In addition, Customer will bear all the court and out-of-court costs and expenses resulting from a breach of intellectual property rights.
    e. Searchmetrics’ liability is limited to damages arising out of an intentional breach of a material contractual obligation or due to gross negligence. Nothing in this section is intended to limit or exclude Searchmetrics’ liability for death or bodily injury of Customer caused by Searchmetrics’ negligence.
    f. The Platform and the Services, their use and the results of such are provided “as is” to the fullest extent permitted by law. Searchmetrics disclaims all express or implied warranties of satisfactory quality and fitness for a particular purpose, which may be implied. The performance of the Platform relies on third parties beyond the control of Searchmetrics.
    g. If Searchmetrics breaches a major contractual obligation due to ordinary negligence, compensation is further limited to foreseeable damages which are typical for this type of contract.
    h. The above limitations to liability do not relate to the Customer’s claims under product liability. The provisions of the German Product Liability Act remain unaffected.
    i. Searchmetrics is not liable for Customer’s loss of profits or other financial damages.
    j. If the contractual liability of Searchmetrics is excluded or limited, the same shall apply to the personal liability of Searchmetrics employees, representatives and agents.
    k. Claims for damages expire one (1) year after the Customer has become aware, or should have become aware without gross negligence, of the circumstances on which the claim is based. This does not apply to claims under the German Product Liability Act.
    l. Strict liability pursuant to § 536a (1) BGB (German Civil Code) is hereby expressly excluded.
    m. Searchmetrics is not liable for the accuracy of data provided by a third party.
    n. Searchmetrics is not liable for delays that arise through incomplete data transmission by the Customer.
13. Confidentiality a. Each party acknowledge that it may receive Confidential Information and will only use such Confidential Information to enjoy its rights or comply with its obligations under this Agreement.b. Confidential Information does not include information, technical data or know-how which was already in the possession of the receiving party prior to disclosure, is or becomes part of the public knowledge through no act or omission by receiving party, is disclosed to receiving party by a third party who is not subject to confidentiality restrictions, is approved for release by the disclosing party or is independently developed by the receiving party without the use of any Confidential Information of the other party.c. Each party covenants and agrees that it will not disclose or cause to be disclosed any Confidential Information of the disclosing Party, except to exercise rights under this Agreement, or as such disclosure may be required by law or governmental regulation, subject to the receiving Party providing to the disclosing Party written notice to allow the disclosing party to seek a protective order or otherwise prevent the disclosure. If requested by the disclosing party, receiving party shall return or destroy the disclosing party’s Confidential Information upon termination of the Agreement.
14. Retention. Customer is entitled to exercise a right of retention only to the extent that his counterclaim is based on the same contractual relationship.
15. Amendments
    a. Searchmetrics is entitled to amend the Terms at any time. Searchmetrics will notify Customer in writing of any changes. If Customer does not object to the changes within six weeks after receipt of the notification, the amendments are deemed accepted. The amendments will become effective if Searchmetrics has expressly notified Customer of this effect in the notification of changes.
    b. If Customer objects to the amendments, the Agreement will continue to operate under the previous conditions.
    c. Amendments according to Clause (1) can only be made if the amendment does not change any material contractual obligation and the balance between performance and counter-performance will not shift to a substantial disadvantage of Customer.
16. Final provisions
    a. This Agreement is governed by and will be interpreted in accordance with the law of the Federal Republic of Germany. The parties to this Agreement expressly exclude German private international law and the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The place of jurisdiction for any disputes arising from the contract, including tortious claims, is Berlin.
    b. The place of performance is Berlin.
    c. All notices, requests, claims, demands and other communications regarding this Agreement must be in writing and
    (i) delivered in person, by reputable overnight courier services (with signature required) or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties to this Agreement to the address set out in the Offer; or
    (ii) sent by email to the other party’s notice email address set out in the Offer for the Customer and to contracts@searchmetrcis.com for Searchmetrics.
    d. Should any provision of this Agreement be or become wholly or partially illegal, invalid or unenforceable, this shall not affect the validity of the remainder of the Terms and Conditions. The parties undertake to agree to replace the invalid provision with an appropriate provision which, as far as is legally possible, comes closest to what the parties intended to agree.