Terms and Conditions - TWIPLA ("Terms of Service")

Terms & Conditions – “Service Terms”

Contracting Parties and Structure of these Terms of Service
1. The business customer of the Services ("Customer") enters into a service agreement ("Agreement") with TWIPLA GmbH, Seestraße 76, 82235 Berg registered under commercial register number HRB 214117 Local Court Munich ("TWIPLA"; TWIPLA and Customer hereinafter together the "Parties" and each a "Party").
2. TWIPLA only concludes Agreements with Customers who are companies, i.e. natural or legal persons acting in connection with their business or self-employed activity.
3. The Agreement consists of the online order form completed by Customer on the Website https://www.visitor-analytics.io ("Website"), these Terms of Service and the Data Processing Agreement (https://www.visitor-analytics.io/en/support/legal-data-privacy-certificates/standard-integration/data-processing-agreement-cookie-information)("DPA").
Definitions

"Agreement" as defined under Section 1 'Contracting Parties and Structure of these Terms of Service'.
"Customer(s)" means TWIPLA's Customer(s) who have integrated the Services on their website.
"Customer Website" means Customer's website where the Services (if ordered) are used.
"Online Order Form" as defined in Section 3 'Conclusion of the Agreement' of these Terms of Service.
"Personal Data" means any information relating to an identified, or identifiable, natural person.
"Personal Usage Data" means Personal Data collected by the Services from Visitors, Customers, employees/authorized persons of Customers, or employees/authorized personnel of TWIPLA, upon input or automatically.
"Platform" means the web-based interface with charts, graphs and maps available for most of the Services' functions.
"Premium Plan" refers to the pricing plans described in Section 15 'Description of Services and fees'.
"Premium Plan Switching" means a change from one Premium Plan to another, or from one payment cycle to another.
"Service(s)" means the Services defined in Section 4 'Services' of these Terms of Service.
"Statistical Data" means the Personal Usage Data and anonymous Website usage data collected by specific features of the Services and provided to Customer through the Platform.
"Subprocessor" means any subprocessor engaged by TWIPLA or by any other subprocessor of TWIPLA.
"Term" means the period of time during which Customer may use the Services.
"Visitors" means those visitors who use the Customer website.
"Website" refers to the TWIPLA website at https://www.visitor-analytics.io/.
Conclusion of the Agreement

The content of the Website is not a binding offer. By registering online on the Website (https://www.visitor-analytics.io/de/register), Customer sends a binding offer ("Online Order Form") to conclude a contract with TWIPLA. After receiving Customer's registration data via the Website, TWIPLA will validate Customer's email address. If the validation is successful, TWIPLA will send Customer an email that also contains these Terms of Service. This email constitutes acceptance of Customer's offer and the conclusion of the Agreement.
Services
1. The Services to be provided during the Term under this Agreement are listed and described at https://www.visitor-analytics.io/en/support/legal-data-privacy-certificates/standard-integration/service-description. The specific Services available will depend on the subscription selected by Customer. Please note that in some cases, not all Services described and/or all features of the Services may be available from the beginning of the Initial Term. Any changes to Services made available by us during the Term are subject to Section 10 'Changes to the Services and to the Agreement'.
2. The Services may be integrated into the Customer Website after registration on the Website in the form of the creation of a customer account ("Customer Account") at https://www.visitor-analytics.io/en/registration-form/ and can be used on computers, laptops and mobile devices.
Rights of use of the Services
1. Subject to the terms, conditions and limitations contained in the Agreement, TWIPLA hereby grants, on or immediately after the commencement date, a non-exclusive, limited, non-transferable and non-sublicensable right to access the Services online during the Term and to use the Services internally for the purposes of the Agreement, including without limitation to collect and store Personal Usage Data from Customer's Website using the Tracking Code and/or other technologies to measure and record, for example, Visitor's interactions (if ordered or part of the subscription). Customer shall not copy or otherwise reproduce the Services or parts thereof, except as required technically to use the Services online.
2. Subject to the foregoing, Customer hereby grants TWIPLA and its Subprocessors a non-exclusive, non-transferable right and license to use Customer's trademark and content during the Term of the Agreement and for a maximum of three (3) months after termination of the Agreement, for the limited purposes of fulfilling TWIPLA's obligations under this Agreement.
3. Subject to the rights granted in the Agreement, TWIPLA retains all right, title and interest in and to the Services and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by the Agreement. Customer further acknowledges that TWIPLA retains the right to use the foregoing for any purpose in our sole discretion.
Term of the Agreement
1. The Initial Term of the Agreement shall start with its conclusion and lasts:
  1. indefinitely for the Free Basic Version (as defined in Section 15.2 below),
  2. until the expiry of the subscription after conclusion of the Agreement ("Initial Term"),
  3. until the integration of the Services is removed from the Customer Website,
  4. until one Party gives notice to the other, or
  5. until Customer's Account with TWIPLA is deleted by Customer, which equals termination;
    (in each case: "Term").
2. After the Initial Term, the Agreement will automatically renew for one (1) additional month in the case of a subscription to a monthly Premium Plan and for an additional twelve (12) months in the case of a subscription to a yearly Premium Plan, unless the Agreement is terminated by either TWIPLA or Customer beforehand. Termination by Customer is possible at any time with one (1) month's notice to the end of the respective Term
3. The right of the Parties to terminate the Agreement for cause remains unaffected. Cause is given, for example, if a Party materially violates its obligations under the Agreement despite a notice by the other Party to cease the violation within a reasonable period of time, or in case insolvency proceedings are initiated with respect to the other Party’s assets.
4. If Customer is in default of payment of the subscription fees for the selected Premium Plan for more than five (5) calendar days, TWIPLA retains the right to suspend the provision of the Services without further notice until all outstanding amounts are paid. In such event, the Agreement shall remain in effect and shall not be terminated. Customer's payment obligations shall remain unaffected during the period in which the Services are suspended for Customer.
5. At the end of the Term, TWIPLA will either delete all data and information (including any application and/or Personal Usage Data) stored by Customer on TWIPLA's server system, if any, or upon written notice from Customer prior to termination of the Agreement return such data and information to Customer. Customer may export all information and data received from TWIPLA under the Agreement from the Services prior to the expiration of the Term.
6. Any termination of the Agreement must be made either by email by TWIPLA to Customer or by Customer using the cancellation button in the subscription area of the Customer Website (or, if applicable, in the Customer Account).
7. Customers may be refunded upon termination of the Agreement under the following conditions, while the payment fees charged by the (third party) payment provider cannot be refunded:
  1. monthly payment plan: until the 3rd day of the first payment cycle, so only in the first 3 days of being a paying Customer.
  2. yearly payment plan: until the 10th day of the first payment, so only in the first 10 days of being a paying user.
  3. Except as per the above, refunds are not granted under any condition
8. Customers that installed the Services from the Wix App Market on a Wix website and use the “Activate direct access” procedure to check the stats for their Wix website on https://app.visitor-analytics.io are governed by the terms and conditions applicable for the Wix Integration https://www.visitor-analytics.io/en/support/legal-data-privacy-certificates/wix-integration/terms-of-use/ and https://www.visitor-analytics.io/en/support/legal-data-privacy-certificates/standard-integration/data-processing-agreement-cookie-information/.
Fees
1. Customer shall pay the Premium Plan Fees defined in Section 15 'Description of Services and fees' for use of the Services.
2. The corresponding subscription fee is due for the first time at the time the Agreement is concluded. The monthly subscription fees shall thereafter be payable on the same day of each of the following months. If the Agreement was concluded on the last day of a month, payment is due on the respective last day of the following month, regardless of the number of days in each month. The subscription fee for yearly subscriptions is payable on the same day each year.
3. Payments are processed by payment service providers for which Customer must submit the required information to TWIPLA during the registration or Premium Plans Switching process.
4. Customer's invoices will be automatically made available in Customer's Account prior to the subscription fee due date and may be downloaded at any time for a period of one (1) year. If Customer fails to make payment within five (5) calendar days after the payment due date, Customer will be in default of payment and the consequences described in Section 15 'Description of Services and fees' of these Terms of Service will apply. Statutory interest rates apply.
5. Customer may not set off any amounts owed to TWIPLA under this Agreement against any other liabilities of TWIPLA unless the amount is undisputed by TWIPLA or has been finally and non-appealable established by a court.
6. All fees payable under the Agreement are exclusive of all applicable taxes, which shall be borne by Customer.
Obligations of Customer
1. Customer is solely responsible for ensuring that Customer's use of the Services through Customer's Website or Customer's employees/authorized persons does not violate any applicable laws or the rights of third parties, including but not limited to intellectual property or proprietary rights of third parties worldwide. Customer shall not interfere with or disrupt TWIPLA's Services or server system. This includes, but is not limited to, Customer's Website and Personal Usage Data:
  - do not violate any laws relating to data protection and data security;
  - are in no way connected with theft, fraud, drug trafficking, money laundering and/or terrorism;
  - are not known, intended or suspected to be infected with viruses; or
  - not be used to send unsolicited emails or other messages.
2. Notwithstanding the foregoing, TWIPLA may suspend the Services, with or without prior notice to Customer, if TWIPLA has reasonable grounds to believe that Customer's Website and Customer's Personal Usage Data do not comply with the requirements of Section 8.1 above.
3. Customer shall maintain confidentiality of all access data and passwords to its personal Customer Account and shall not disclose the same to any third parties. Customer shall promptly give notice to TWIPLA and change all passwords if Customer reasonably suspects that any unauthorized third party has obtained information about Customer’s access data or passwords.
4. Customer shall update accordingly in the Customer Account, under the website subscription settings, any change of its name or company name, its residence or business address, its billing address, legal form or, if applicable, banking particulars. Customer will only be allowed to employ administrative users who have been assigned an internal unique user identification by Customer themselves to access the Services.
5. Customer shall grant us all use and exploitation rights in any content, application or other material of Customer necessary for us to provide the Services under the Agreement during the Term, including arranging the application and/or content, to convert them into a different format and use type specifically for mobile devices.
6. In order to use and access the Website, Customer must have internet access as well as a common state of the art internet browser as well as any additional technical prerequisites set out on the Website. Customer is solely responsible for bearing the costs and for ensuring the functioning of its internet access as well as of the computer and the software used to access the Services.
Confidentiality
1. During the Term of the Agreement and for a period of two (2) years thereafter, the Parties undertake to maintain confidentiality of all documents, information and data, which became available to the Parties due to and in the course of their cooperation (“Confidential Information”).
2. Disclosure of Confidential Information of the disclosing Party by the receiving Party to third parties requires a prior written or email consent of the disclosing Party. No consent is required for the disclosure of Confidential Information by us to their subcontractors and contractors if and to the extent required to assist us in performing the Contract. The receiving Party shall also commit to the agreed obligations to maintain confidentiality to all persons and companies that receive Confidential Information of the disclosing Party.
3. The confidentiality obligation of the receiving Party does not cover Confidential Information (i) which became known to a Party publicly without a breach of confidentiality, (ii) which was developed independently by the receiving Party without reliance in any way on Confidential Information disclosed by the disclosing Party or (iii) which must be made available to third parties pursuant to legal, judicial or public orders or mandatory law.
Changes to the Services and the Agreement
1. TWIPLA may change the terms of the Agreement at any time in order to take account of changes to user preferences, the internet economy, applicable laws and industry practices, or similar reasons, with no modification having an adverse effect for Customer (“Changes”). Customer will be informed about Changes by email. Unless Customer objects to such Change within two (2) weeks after receipt of information of such Change, the changed terms apply after lapse of this two-week period. In case Customer objects to the Change within the two-week period in written form, the Agreement can be terminated and Customer must cancel the active Premium Plans and stop using the Services.
2. With respect to any modifications to the terms of the Agreement other than a Change, above all modifications that are adverse or disadvantageous to Customer, like higher fees, such modifications will not apply to Customer unless Customer actively consented to such modification. Until Customer consents, the then agreed terms of the Agreement will continue to apply and TWIPLA may allow Customer to terminate the Agreement early subject to a pro-rated refund of prepaid fees at Customer’s choice.
3. Customer has the right to perform Premium Plan Switching at any time by using the Change Subscription button provided within the subscription section of Customer Website’s settings in the Services (or – if applicable – in the Customer Account) and by declaring acceptance of the then current terms of the Agreement for Premium Plan Switching.
Data protection and privacy
1. The Privacy Policy at https://www.visitor-analytics.io/en/support/legal-data-privacy-certificates/homepage/privacy-policy/ applies.
2. With respect to the protection of Personal Data, the Parties agree to comply with applicable local data protection laws, including those that impose the corresponding obligations on their service providers, employees and business partners.
3. TWIPLA will only process Personal Data on behalf of Customer in accordance with written instructions provided by Customer. Customer shall remain the controller in respect of all personal data processed by TWIPLA in connection with the provision of the Services described herein and TWIPLA shall act solely as a processor. Details may be found in the DPA entered into between the Parties (https://www.visitor-analytics.io/en/support/legal-data-privacy-certificates/standard-integration/data-processing-agreement-cookie-information/). After installing the Services and/or inserting the TWIPLA tracking code snippet into the source code of the Customer's Website, Customer is obliged to conclude the DPA with TWIPLA by electronically signing the DPA in the Customer's Account in the settings section.
Defects

If and to the extent that the Agreement qualifies as a contract for work and services or a rental contract, Customer shall have the statutory rights in the event of a defect. The following applies to Premium Plans: The right to a reduction of the subscription fee is excluded, with the exception of reductions in the form of Credits in accordance with Appendix 1, Clause 2 'Rights in the event of non-compliance with the Service Levels'.
Limitation of liability
1. TWIPLA's liability for damages caused by slight negligence shall, irrespective of its legal ground, be limited as follows:
  1. For each claim, TWIPLA shall be liable up to the amount of the yearly fee for yearly subscriptions and up to the amount of the monthly fee for monthly subscriptions.
  2. TWIPLA shall not be liable for any slightly negligent breach of any other applicable duty of care.
2. The aforesaid limitations of liability shall not apply to any mandatory statutory liability and liability for culpably caused personal injuries. In addition, such limitations of liability shall not apply if and to the extent TWIPLA has assumed a specific guarantee.
3. Customer shall be obligated to take appropriate measures to avert and mitigate damages.
Force Majeure
1. Neither Party shall be liable to the other for non-performance (either wholly or in part), nor for any delay or failure in performance, to the extent that such delay or failure is caused by a force majeure event whereat force majeure is any external, unpredictable, absolutely invincible and inevitable event such as an earthquake, a volcano eruption, a storm, a tsunami, a flood, a fire, a typhoon, a pandemic, a war, a terrorist attack or a state crisis unless these calamities are a common phenomenon in the area where the Party is located.
2. While a force majeure event subsists, the Party so affected shall be relieved of liability to the other for failure to perform its obligations under the Agreement and such obligations shall be suspended until such time as performance can be resumed (provided that the relevant affected Party could not have prevented the failure or delay by taking reasonable precautions or measures). The affected Party shall immediately notify the other Party as soon as it becomes aware that it is unable to perform any Service to be rendered hereunder as a consequence of any force majeure event.
3. If a force majeure event lasts for more than one (1) subsequent month, either Party may withdraw from the Agreement.
Description of Services and fees
1. Services
  
  Detailed descriptions of our Services can be found here: https://www.visitor-analytics.io/en/features/.
2. Free Basic Version
  
  Customers can use a free basic version ("Free Basic Version") of the Services. This does not include all the functionalities of TWIPLA and is limited to the analysis of 400 server touch points on the Customer's Website ("STPs") per month. Once the 400 STPs are reached in a month, further visits to the Customer Website will not be analysed and the representations on the Platform Dashboard may be incomplete for that month. In the following month, Customer can then use the Services again to the extent of the Free Basic Version until the 400 STPs are reached. Customer has the option to switch to a Premium Plan for a fee at any time, and thus continue to use the Services even after reaching the 400 STPs.
  
  The Free Basic Version is provided "as is" with certain downtime. TWIPLA does not promise any specific Service Levels as part of the Basic Free Version. TWIPLA will use its best efforts to minimize downtime when using the Free Basic Version. TWIPLA disclaims all warranties with respect to the Free Basic Version and shall only be liable for fraudulently concealed defects. The Service Levels listed below in Appendix 1 'Service Levels' do not apply.
3. Fees
  
  Customers may choose between different Premium Plans with different fees based on the package, traffic quota and additional features. Customer can change their subscription to a different package at any time depending on their needs.
  
  Available Premium Plans can be found at: https://www.visitor-analytics.io/en/pricing/
  
  Customer’s subscription will automatically renew at the day of the new calendar month/calendar year equivalent to the day on which the Agreement was concluded. The fees will be charged each month/each year on the calendar day corresponding to the commencement of the Agreement. (See Section 6.b)
  
  If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and Customer does not change Customer’s payment method or cancel Customer’s account, TWIPLA may suspend Customer’s access to the Service until TWIPLA has obtained a valid payment method. When Customer updates Customer’s payment method, Customer authorizes us to continue charging the updated payment method, and Customer remains responsible for any uncollected amounts. Section 6.d of these Terms of Service shall remain unaffected.

Premium Plan Switching

Premium plan switch type	Description
Switching the same Premium Plan from the yearly billing cycle to the monthly billing cycle	The change will take effect immediately. Customer new Premium Plan will automatically renew unless Customer cancels it. If Customer does nothing, Customer’s credit/debit card or payment account will be charged.
Switching the same Premium Plan from monthly billing cycle to yearly billing cycle	The change will take effect immediately. Customer new Premium Plan will automatically renew unless Customer cancels it. If Customer does nothing, Customer’s credit/debit card or payment account will be charged.
Switching to a plan with higher fees: monthly to monthly or yearly to yearly billing cycle	The new Premium Plan will begin immediately and the applicable billing amount will apply toward payment of the new Premium Plan, if applicable. Customer’s new Premium Plan will automatically renew when it expires unless Customer cancels. If Customer does nothing, Customer’s credit/debit card or payment account will be charged.
Switching to a plan with higher fees: monthly to yearly billing cycle	The new Premium Plan will begin immediately and the applicable billing amount will apply toward payment of the new Premium Plan, if applicable. Customer’s new Premium Plan will automatically renew when it expires unless Customer cancels. If Customer does nothing, Customer’s credit/debit card or payment account will be charged.
Switching to a plan with higher fees: yearly to monthly billing cycle	The new Premium Plan will begin immediately and the applicable billing amount will apply toward payment of the new Premium Plan, if applicable. Customer’s new Premium Plan will automatically renew when it expires unless Customer cancels. If Customer does nothing, Customer’s credit/debit card or payment account will be charged.
Switching to a lower priced Premium Plan	The new Premium Plan will begin immediately and the applicable billing amount will apply toward payment of the new Premium Plan, if applicable. Customer’s new Premium Plan will automatically renew when it expires unless Customer cancel. If Customer does nothing, Customer’s credit/debit card or payment account will be charged.

Other provisions
1. The Agreement shall be governed exclusively by the laws of Romania, excluding its conflict of laws principles and the United Nations Convention on Contracts for the International Sale of Goods.
2. The exclusive place of jurisdiction for all disputes arising from this Agreement is the competent court in Cluj-Napoca, Romania.
3. Should any provision of this Agreement be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
4. Any general terms and conditions provided by Customer as part of an order, invoice or purchase order shall not apply and are hereby rejected by TWIPLA.
5. TWIPLA may engage Subprocessors to provide the contracted Services. In this case, TWIPLA is responsible for ensuring the proper performance of these Subprocessors in accordance with the Terms of Service. Provisions in the DPA remain unaffected.
6. Each Party agrees to comply with all applicable laws, rules and regulations in the performance of its obligations under the Agreement.
Entire Agreement
1. Except as set forth in this section or to the extent expressly agreed to in writing between Customer and TWIPLA, the Agreement constitutes all of the terms and conditions agreed to between Customer and TWIPLA and supersedes all prior agreements with respect to the subject matter of these Terms of Service, whether written or oral.
2. Customer shall note, however, that certain aspects of the use of the TWIPLA Services and its Visitor Recordings feature (if ordered) may be governed by additional agreements. This may include, for example, access to the TWIPLA Service through a gift voucher or use in conjunction with other services. If Customer is offered such use, Customer will be presented with a respective supplemental agreement, and Customer may have the opportunity to agree to additional terms. Some of these additional terms are set forth on the TWIPLA Website. To the extent there is an irreconcilable conflict between additional terms and these Terms of Service, the additional terms will prevail.
TWIPLA Data Protection Officer

Name, first name: Veit, Alexander
Email: dpo@visitor-analytics.io
Contact TWIPLA

Email: support@visitor-analytics.io

Appendix 1

Service Levels

The Service Levels for the Platform and other available features of the Services are defined as follows:

System availability of the Platform per month [average availability].

Service level	99.75% availability
Calculation	The availability is calculated as follows: "Availability" means the ability of Customer to access the features of the Platform as agreed in the Agreement. "Scheduled Downtime" means the total time (in minutes) in a calendar year that the Platform is unavailable due to Scheduled System Maintenance or other Scheduled Downtime. TWIPLA will use reasonable efforts to ensure that Scheduled System Maintenance occurs between 1:00 a.m. and 5:00 a.m. CEST and that reasonable notice of such System Maintenance is given. "System Availability" relative to availability in a calendar year is the ratio expressed as a percentage when Customer subtracts the unscheduled downtime in that calendar year from the annual total time in that year and then divides that difference by the annual total time in that year (see formula above). "Total Annual Time" includes all minutes in the applicable calendar year during the term of the Agreement. "Unscheduled Downtime" means the total time (in minutes) of unavailability in a calendar year, excluding Planned Downtime and excluding Downtime that occurs due to circumstances beyond TWIPLA's control. Such circumstances include, without limitation, (i) Customer's breach of the terms of this Agreement, (ii) Customer's failure to comply with the terms of this SLA, (iii) incompatibility of Customer's hardware or software with the agreed requirements relating to use of the Services, including the requirements set forth in the Access Protocols, (iv) poor or inadequate performance of the Systems or Customer, (v) Customer's use of the Services significantly in excess of the agreed volume, or (vi) Force Majeure (as defined in the Agreement).
Measuring point	TWIPLA Service - Delivery point for the Platform and/or other available functionality for the Services.
Measuring time	Calendar month during the Term of the SaaS Contract

TWIPLA provides daily email support, 8 hours a day, worldwide. Email support can be reached at support@visitor-analytics.io.

Rights in the event of non-compliance with the Service Levels
1. In the event of Unscheduled Downtime, TWIPLA agrees to use economically reasonable efforts to remedy the Unscheduled Downtime within a reasonable time period.
2. If TWIPLA fails to meet the Service Levels set forth in Appendix 1 'Service Levels', Customer shall be entitled to the service credits set forth below ("Credits"), provided that Credits for Unscheduled Downtime shall not exceed 5% of the total charges paid by Customer to TWIPLA for all Services provided during the applicable Service Month.
  
  Availability of services Credit (% of the monthly fees for the services)
  < 99.0% 2.5%
  < 98.0% 5.0%
  < 97.0% 10.0%
3. Receipt of Credits. In order to receive a credit, Customer must request such credit in writing from TWIPLA within five (5) business days of receipt of a report describing the Unscheduled Downtime ("Service Level Report") for the period for which the credit is alleged to have occurred. Customer's written request must detail the date(s), time(s), and duration(s) of any Unscheduled Downtime claimed by Customer. If TWIPLA approves Customer's written request for a credit after review, TWIPLA will notify Customer of this fact and how to receive the credit. Credits cannot be applied retroactively. Any Customer who fails to timely submit a written request for a credit will forfeit all rights to receive a credit for that month. Credits payable by TWIPLA will be credited against any claim for damages Customer may have under the Agreement based on such Service Level violation.
4. Customer must notify TWIPLA immediately if any Unscheduled Downtime occurs. Unscheduled Downtime shall be deemed to have occurred when TWIPLA receives sufficient notice to that effect from Customer or when TWIPLA first becomes aware of such Unscheduled Downtime, whichever occurs first.

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Availability of services	Credit (% of the monthly fees for the services)
< 99.0%	2.5%
< 98.0%	5.0%
< 97.0%	10.0%