Terms & Conditions
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The “Terms and Conditions”
These Terms and Conditions govern the “Customer”s use of the Keyword Hero Service operated by cross platform solutions GmbH (“Keyword Hero”).
1 The Keyword Hero Service
1.1 The “Keyword Hero Service” tries to match data from different sources, among them search engines, the Google Analytics Core Reporting API and other third party data suppliers (jointly “Data Sources”), to provide the Customer with the keyword that Customer’s website users searched for in the search engine before getting to Customer’s website, the position of the link to Customer’s website within the search results, and the click through rate. The Keyword Hero Service matches this information with the Customer’s website’s user’s Google Analytics session, whenever Keyword Hero is able to generate this data.
1.2 The match rate of keywords to their corresponding sessions heavily depends on the data and other circumstances Keyword Hero cannot influence. Keyword Hero most probably will never be able to provide information on all Google Analytics sessions, and the success rate may differ extremely. Therefore, the Keyword Hero only promises to use his best efforts to match the data. Keyword Hero does not guarantee success.
1.3 The matched data “Results” are pushed into a new Google Analytics account (the “Data Target”) that will be opened for Customer.
1.4 Keyword Hero strives to provide updated Results usually once per day, at least every 48 hours, provided that all Data Sources and the Data Target are available at all times. If Keyword Hero does not provide any updated Results during a 48 hour period, the Customer may, as exclusive remedy, demand a refund of a 1/720th of the monthly fee paid by Customer per hour of non-provision of updated Results exceeding 48 hours from the preceding update, provided that there were new data in the Data Sources and processing of said new data would have generated updated Results other than just data Keyword Hero cannot match. Data Sources and Data Target are deemed available when (1) properly accessible and working (including, but not limited to, providing correct data at usual data rates) when contacted from a suitable access point (2) Customer has granted Keyword Hero all necessary access rights.
1.5 Customer permits Keyword Hero to access, copy, retain, and use for analyses of any kind, and pass on to any third party, all and any data contained in the Data Sources and to store all and any Results in the Data Target. If Customer withdraws Keyboard Hero’s access rights to Data Sources and/or Data Target, Keyboard Hero is exempted from providing the Keyword Hero Services to the extent affected by such an access rights withdrawal until all necessary access rights are granted again. The withdrawal of access rights shall not be considered a cancellation of the contract, so that Customer shall be obliged to pay the agreed fees even if Keyword Hero is exempted from providing his services, until actual termination of the contract.
1.6 Keyword Hero does not provide any consulting, support, training or the like for the Keyword Hero Services. It is exclusively Customer’s responsibility to assess whether the Keyword Hero Services meet Customer’s needs.
1.7 Keyword Hero may subcontract all or some of its obligations under the contract to any third party.
2 Fees and Payment
2.1 Fees depend on the subscription type (plan) Customer has chosen.
2.2 Fees shall be billed per month and are due in advance. The “Invoice Month” starts on the day (GMT/UCT) that Customer’s subscription order is accepted by Keyword Hero and ends on the day (GMT/UTC) before the day with the same number (day of month) in the next month or, if the day with the same number does not exist in the next month, the last day of the next month.
2.3 Keyword Hero shall be exempted from performing the Keyword Hero Services as long as Customer has not paid all due fees.
2.4 Customer shall effect all payments via the payment methods offered on Keyword Hero’s website. Keyword Hero may restrict payment methods to payments via a payment provider.
3 Customer’s Obligations, Indemnification
3.1 Customer shall not make available any Personal Data to Keyword Hero, which means that Data Sources must not contain any Personal Data (such as IP addresses, so that Customer needs to use the Google Analytics AnonymizeIP function). “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
3.2 Customer shall be liable to Keyword Hero for all damages and expenses that arise out of any violation of Customer’s obligations governed under Section 3.1 and that Keyword Hero may consider necessary under the circumstances, and shall indemnify Keyword Hero against all claims of any third party that such third party may raise based on a violation of Customer’s aforesaid obligations. This shall not apply if Customer proves that he is not responsible for the violation.
3.3 Customer shall be liable to Keyword Hero for third parties who, with or without authorization, use or have used Keyword Hero Services, including ordered subscriptions, through his Keyword Hero account, including the fees that accrue for this. This shall not apply if Customer proves that he is not responsible for the unauthorized use.
3.4 Customer shall, under his account, exclusively use Keyword Hero Services for his own websites.
3.5 Keyword Hero may, but shall not be obliged to, store data retrieved from Data Sources. Therefore, in order to rule out the loss of data and secure that retrospective analyses are possible, Customer is responsible for ensuring that the Data Sources and Data Target and all data stored therein remain available.
3.6 If Customer severely violates his obligations arising from Sections 3.1, 3.4 and 3.5, or if facts justify a substantial suspicion that this has happened, Keyword Hero shall be entitled to block access to the Keyword Hero account and/or suspend provision of Keyword Hero Services, in whole or in part, with or without prior notice; in such event, Customer shall remain obligated to pay the monthly fees, unless the suspicion proves to be unfounded. The right to termination for good cause shall remain unaffected. If a block is justified solely by a violation or a suspicion of a violation of Section 3.1, the provision of Results shall not be blocked.
3.7 In the event that the access is blocked, Keyword Hero shall inform Customer about the block via email to the email address of in the customer’s Keyword Hero’s account.
4.1 Keyword Hero shall be liable according to the statutory provisions, without any limitation, in cases of intentional acts or gross negligence imputable to Keyword Hero or upon the absence of a guaranteed characteristic, as well as in cases of an injury to life, body or health through slight negligence imputable to Keyword Hero.
4.2 In addition, Keyword Hero shall be liable in accordance with the statutory provisions for the violation of any obligation, the fulfillment of which is an absolute condition for the proper execution of the contract and the adherence to which Customer may regularly rely on, for any impossibility of the service incumbent on Keyword Hero and if Keyword Hero is in delay with its service through slight negligence; however, in such cases, total liability shall be limited to the financial losses that Keyword Hero, when concluding the contract, ought to have foreseen as a possible consequence of the violation of the contract.
4.3 Customer explicitly confirms that financial losses arising out of the contract under no circumstance can be foreseen to exceed 1.000 Euros, so that Keyword Hero’s aggregate liability in cases of Section Section 4.2 is restricted to 1.000 Euros.
4.4 Except for liability under Section 4.1, Keyword Hero shall not in any event be liable (or in any way legally responsible) for third party claims, lost profits, loss of business, loss of reputation or good will, and/or any other indirect or consequential damages.
4.5 For the loss or corruption of data, Keyword Hero’s liability shall be restricted to such damages that would have arisen if Customer had backed up his data in a suitable form at intervals adequate for the application, so that such data can be recovered with reasonable effort. Customer is referred to the fact that failure of Customer to perform his own data backups may lead to claims for damages against Keyword Hero based on data losses being excluded, in whole or in part (Section 254 of the German Civil Code BGB).
4.6 Liability for any other damages shall be excluded; whereas liability under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
4.7 Keyword Hero’s liability limitations shall also apply to any personal liability of Keyword Hero’s officers, agents, employees and assistants.
4.8 Keyword Hero’s liability in damages in connection with the contract, except for liability under Section
5 Term and Termination
5.1 The contract is made for an undefined period of time.
5.2 A termination on the part of either party is possible at any time with effect to the end of the current Invoice month.
5.3 Customer may only terminate the contract through the customer menu on Keyword Hero’s website.
5.4 Keyword Hero may terminate the contract by sending an email to the email address of Customer’s Keyword Hero account.
5.5 The right of either party to terminate the contract for good cause remains unaffected. For Keyword Hero, good cause shall be particularly present if Customer violates his obligations under Sections 3.1, 3.4, 3.5 or if any provider of Data Sources or Data Target modifies the data provided or accepted (e.g. structure, data fields) or limits Keyword Hero’s access to Data Sources or Data Target in a manner that impedes or substantially obstructs provision of the Keyword Hero Services or any other change outside Keyword Hero’s sphere of influence that impedes or substantially obstructs provision of the Keyword Hero Services.
6 Amendments to the Terms and Conditions and Fees
6.1 Amendments to these Terms and Conditions shall be offered to Customer no later than two months prior to the proposed date of their effectiveness, by means of an email to the email address entered as contact in the customer menu on Keyword Hero’s website.
6.2 Keyword Hero may change the Keyword Hero Services if such changes are necessary to take into account amended or new technical standards or changes in the data provided or accepted by Data Sources and Data Target that are relevant to the respective service, and if the amendments are not unreasonable for Customer under consideration of the interests of both parties. Such amendments shall be offered to Customer no later than two months prior to the proposed date of their effectiveness, by means of an email to the email address entered as contact in the customer menu on Keyword Hero’s website. If the necessity of amendments is outside the sphere of influence of Keyword Hero, no announcement period has to be observed but Keyword Hero shall announce the necessary changes as soon as reasonably possible.
6.3 Keyword Hero may change fees for paid Keyword Hero Services at its reasonable discretion (Section 315 of the German Civil Code BGB). Such amendments shall be offered to Customer no later than two months prior to the proposed date of their effectiveness, by means of an email to the email address entered as contact in the customer menu on Keyword Hero’s website.
6.4 Customer’s consent to the amendments communicated under Sections 6.1, 6.2 or 6.3 shall be deemed to have been issued if (1) Keyword Hero would be entitled to terminate the contract (ordinary termination) at or before the proposed date of the effectiveness of the amendments and (2) Customer has not objected to the amendments in writing or via e-mail prior to the proposed date of their effectiveness. In its offer, Keyword Hero shall make particular reference to the effect of not reporting objections to amendments. If amendments are offered to Customer, he may terminate the contract affected by the amendment with immediate effect and at no cost at any time prior to the proposed date of the effectiveness of the amendments; in such case, paid fees shall be reimbursed on a pro rata basis. In his offer, Keyword Hero shall also make particular reference to Customer’s right to terminate the contract. If Customer terminates the contract or objects to an amendment prior to the proposed date of their effectiveness, the amended Terms and Conditions and fees shall not be applied to the contract.
7 Final Provisions
7.1 The contract shall be governed by and construed in accordance with the laws of the Federal Republic of Germany without giving effect to conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. If Customer is a consumer, this choice of law shall be without prejudice to the application of rules of the law of the country where Customer has his habitual residence, which cannot be derogated from by contract.
7.2 All disputes arising under or in connection with the contract shall be submitted exclusively to the district court of Berlin, Germany (Landgericht Berlin) if Customer is a merchant, legal entity of public law or of special fund under public law or does not have a place of general jurisdiction in Germany or for the event that, following the conclusion of the contract, the party to whom claim is to be laid relocated his place of residence or habitual place of abode to a location outside Germany, or for the event that the party’s place of residence or habitual place of abode is not known at the time the proceedings are brought in the courts. The right of either party to claim injunctive relief before any competent court remains unaffected.
7.3 Except for payment claims, Customer may not assign any rights and obligations arising from this contract or the contract as a whole to any third party, without the prior written consent of Keyword Hero.
7.4 Keyword Hero may assign any rights arising from this contract or the contract as a whole to any third party without Customer’s consent. If Keyword Hero announces an assignment of the contract as a whole – namely not in cases of assignment of payment claims –, Customer may terminate the contract affected by the assignment, without any notice period or cost, prior to the point in time of the effectiveness of the assignment or, if communicated after the effectiveness of the assignment, within two weeks.
7.5 Other terms and conditions of either party shall not apply. The contract including these Terms and Conditions constitutes the entire agreement between the parties with regard to the subject matter hereof. There are no side agreements.
7.6 Should one or more of the provisions of these Terms and Conditions be or become invalid or unenforceable, the validity and enforceability of the other provisions thereof shall not be affected.