General Terms and Conditions

These General Terms and Conditions apply to all contracts for the use of the “Metrunio” software between Kokolorum GmbH, Industriering Ost 66, 47906 Kempen, Germany (the “Provider”) and the customer.

The offering is directed exclusively at businesses within the meaning of § 14 German Civil Code (BGB), at legal entities under public law and at special funds under public law. Contracts with consumers (§ 13 BGB) are not envisaged. By registering, the customer confirms that it is acting in the course of its trade, business or profession.

Deviating, conflicting or supplementary terms of the customer do not become part of the contract, even if the Provider does not expressly object to them or performs the service in knowledge of them.

Precedence, in this order: an individual written agreement, the data processing agreement under Art. 28 GDPR, the service description of the plan booked, these terms.

The Provider makes available over the internet a software application for measuring ad contacts, website visits and conversions, and for evaluating them (software as a service). There is no claim to the source code.

The scope of the service follows from the plan booked. The limits stated on the pricing page at the time of booking are authoritative: events per month, websites, user accounts and retention period, together with the functions listed there.

The Provider owes the provision of the software and the processing of the events submitted, using the described procedures. It does not owe any particular measurement result. How completely something can be measured depends on circumstances outside its control — in particular on the consent of the data subjects, on device and browser settings, and on the interfaces of the advertising platforms. The known limits are publicly documented and form part of the service description.

In every evaluation the Provider distinguishes between measured and attributed figures. An attribution is a calculation based on a model chosen by the customer, not a measurement.

The presentation of plans on the website is not a binding offer but an invitation to make one.

The contract is formed when the Provider confirms the registration and enables access. For paid plans the contract is formed on completion of the payment process.

The customer must provide accurate information on registration and keep it up to date. This applies in particular to the billing address, the VAT identification number and the email address to which operational notices are sent.

The customer is responsible for keeping its access credentials confidential. If there is any suspicion of misuse, it must inform the Provider without undue delay.

The Provider offers a permanently free plan with a reduced scope. These terms apply to it with the following deviations:

• There is no claim to availability and no committed response time in support.
• When the event allowance is reached, acceptance of further events stops. Overage is not billed; no one who pays nothing is charged for exceeding an allowance.
• The Provider may change or discontinue the free plan on three months’ notice in text form to the address held in the account.

An account on the free plan that has received no event for twelve months and has not been logged into during that time may be deleted by the Provider after prior notice in text form and a period of 30 days.

All prices are net and exclusive of statutory VAT. For customers in other EU member states holding a valid VAT identification number, the reverse charge procedure applies.

The monthly fee for the plan booked is payable in advance. Billing runs through the payment service provider Stripe Payments Europe, Ltd.; its payment terms apply in addition.

Events beyond the allowance are billed at the rate stated on the pricing page per commenced 10,000 events. Billing covers the completed month and appears as a line item on the next regular invoice.

Overage is capped at the difference to the next higher public plan. In no month does the customer pay more than the next higher plan costs, without receiving that plan’s other limits. On the top plan, the ceiling stated on the pricing page applies instead; beyond it, use requires a separate agreement. Above the threshold stated on the pricing page, further events are accepted only if the customer has consented in the portal to agreeing an individual plan; until that agreement is concluded, the ceiling continues to apply.

On agency plans the first managed client tenant is included in the base fee; for every further one the fee stated on the pricing page is added. Only tenants that were not suspended during the billing period are counted.

If the customer is in default of payment, the Provider first gives notice in the portal and by email. Access initially remains: a failed charge is usually an expired card, not a refusal to pay. Only if payment fails to arrive after unsuccessful retries and a reminder setting a deadline may the Provider suspend access. During a suspension the system accepts no further events; data already stored is retained in accordance with § 8.

The customer may set off only against claims that are undisputed or have been finally determined by a court.

The contract runs for an indefinite period. The billing period is one month unless a longer one has expressly been agreed.

Either party may terminate with effect from the end of the current billing period. There is no notice period. The customer terminates in the portal under “Settings → Billing”; no reason need be given.

If the customer chooses annual payment, the term is twelve months from the start of the chosen period; the fee for the term is payable in advance. Ordinary termination is excluded during the term. On expiry, the contract continues as a monthly contract at the monthly price then applicable to the plan and may from then on be terminated with effect from the end of any billing month. An upgrade to a higher plan is possible during the term; the difference is charged pro rata for the remaining term. A downgrade takes effect at the end of the term. Fees already paid are not refunded on termination by the customer; the rights under § 10 and § 11 and the pro-rata refund on a discontinuation of the service remain unaffected.

If the Provider discontinues the service, it gives at least six months’ notice in text form. During that period, access and the full export of the data remain available. For a term paid in advance, the Provider refunds the fee for the period after discontinuation pro rata.

The right to terminate for cause remains unaffected. For the Provider, cause exists in particular where the customer breaches § 7 despite a warning.

A special right of termination arises under § 10 (changes to these terms) and under § 11 (new sub-processor).

Termination requires text form. Using the termination function in the portal is sufficient.

The customer is responsible for the lawfulness of the data it submits, or has submitted, through the Provider’s interfaces. In that respect it is the controller under data protection law.

It ensures in particular that

• there is a legal basis for the processing and, where required, valid consent under Art. 6(1)(a) GDPR and § 25(1) TDDDG before any access to the terminal device;
• the consent state is correctly transmitted to the Provider through the interface provided for it;
• its own privacy notice describes the measurement, its purposes, the retention period and the Provider’s role as processor;
• no special categories of personal data under Art. 9 GDPR and no data concerning children under 16 are submitted;
• no plain-text email addresses, phone numbers, names or comparable directly identifying details are transmitted in event fields. The system rejects such events; responsibility for the transmission remains with the customer.

The customer does not use the software to recognise individuals irrespective of consent, to build profiles across the boundaries of its tenant, or to process third-party data without a legal basis.

The customer indemnifies the Provider against third-party claims arising from a breach of these obligations, including reasonable costs of legal defence. This does not apply where the customer is not responsible for the breach.

The data submitted by the customer and the data derived from it remain the customer’s data. The Provider acquires no rights of use beyond performing the service.

The Provider does not use customer data to serve its own advertising and does not pass it on for its own purposes. No analysis takes place across tenant boundaries — not even anonymised, for benchmarks.

During the term the customer can retrieve its data at any time through the export functions and the read interface included in its plan.

After the contract ends the data remains available for export for 30 days and is then deleted in full. Backups expire on their own cycle and are overwritten within 35 days; they are not searched selectively to remove individual records.

Further provisions on deletion are set out in the data processing agreement and the deletion policy.

The Provider operates the software with the care of a prudent business and aims for high availability. No availability percentage is warranted. The Provider measures availability continuously and publishes the figures on its status page; periods without measurement are expressly shown there as not measured, not as available.

Maintenance expected to cause an interruption is announced at least 48 hours in advance in text form or in the portal, and is carried out outside ordinary business hours where possible. Security-related interventions may be made without prior notice; the Provider reports them without undue delay.

Support is provided in text form through the channels named in the portal. A response time is committed only where it is expressly stated for the plan booked; on the free plan there is no commitment.

Interruptions caused by faults on the internet outside the Provider’s control, by force majeure, or by a cause for which the customer is responsible do not count as downtime.

The Provider may develop the software further and change individual functions, provided the contractually owed purpose is preserved and the change is reasonable for the customer. Functions that are to be withdrawn are announced at least three months in advance in text form.

On what grounds changes may be made. A change to these terms requires an objective reason. Objective reasons are: a change in the law or in settled case law, an order by an authority or a court, a gap or ambiguity that only becomes apparent after the contract was concluded, requirements of security or data protection, and a change in third-party services on which the Provider depends in order to perform. Other reasons do not support a change.

What a change may not do. The main subject matter and the balance of consideration cannot be shifted this way; that requires express agreement. Nor may a change place the customer in a worse position than the objective reason requires.

Prices. The Provider may adjust prices at most once in twelve months, and only to the extent that its own costs for operation, upstream services and staff have risen since the last adjustment. The notice states that extent. Larger increases require express agreement. During a running annual term (§ 5) a price adjustment takes effect only at the end of that term.

Changes to these terms and price changes are notified to the customer at least six weeks before they take effect, in text form to the address held in the account. The notice quotes the clauses affected, states the objective reason, the effective date and the right to object.

Objection. If the customer does not object before the effective date, the change is deemed accepted; the notice states this expressly. If the customer objects, the contract continues on the previous terms and prices. In that case the Provider may terminate the contract by ordinary notice as of the next permissible date; the contract does not end automatically. An objection is meant to be a decision about the change, not about the contract.

The Provider uses sub-processors. Who they are, for what purpose, in which location and on what basis for any transfer outside the EU is published under “Documents” and forms an annex to the data processing agreement.

A change or addition is announced there at least 30 days in advance and notified in text form to the address held in the account. The customer may object on reasonable grounds; in that case it has a special right of termination as of the date of the change.

For the term of the contract the Provider grants the customer the non-exclusive, non-transferable right to use the software over the internet within the agreed scope.

The customer may not pass its access on to third parties. This does not cover people acting for the customer — an appointed agency, for example — provided they work through their own named user accounts; the customer remains responsible for their conduct.

Reproducing the evaluations to third parties, for instance to an agency’s clients, is permitted. The right to make the software itself available to third parties for a fee exists only on the agency plan.

The Provider may not name the customer as a reference or use its marks for that purpose without prior consent in text form. Consent given may be withdrawn at any time with effect for the future.

Where the Provider processes personal data on the customer’s behalf, the data processing agreement under Art. 28 GDPR applies. It is incorporated on formation of the contract and is available under “Documents”; on request the Provider will additionally supply it as a signed document.

The settings made in the product — retention period, attribution windows, forwarding to advertising platforms, mapping of consent — constitute the customer’s documented instructions. They are traceable in the tenant’s log.

For the processing of the customer’s own data — account, contract, billing, support — the Provider is the controller. Details are set out in the privacy notice.

If the customer switches on the forwarding of conversions to an advertising platform, that is a separate processing operation which it instructs. Whether joint controllership under Art. 26 GDPR arises with the platform depends on that platform’s terms; the customer assesses this for the platforms it chooses.

Each party keeps the other’s confidential information confidential and uses it only to perform this contract. Confidential information includes in particular access credentials, prices from individual agreements, evaluations, and non-public technical details.

The obligation does not apply to information that is public, becomes public without breach of this obligation, was developed independently, or must be disclosed by law or official order. In the last case the party under the obligation informs the other beforehand, so far as it is permitted to.

The obligation continues for three years after the contract ends.

German landlord-and-tenant law (Mietrecht) applies to the temporary provision of software. Strict liability for defects existing at the time the contract was formed (§ 536a(1) alt. 1 BGB) is excluded.

The customer reports defects without undue delay in text form and describes them so that they can be reproduced.

Insignificant impairments of fitness for use are disregarded. A deviation that does not change what an evaluation says is regarded as insignificant.

The Provider is liable without limitation for intent and gross negligence, for injury to life, body or health, under the German Product Liability Act, and to the extent of any guarantee given.

For ordinary negligence the Provider is liable only for breach of a material contractual obligation — an obligation whose fulfilment makes proper performance of the contract possible in the first place and on whose observance the customer may regularly rely. In that case liability is limited to the foreseeable damage typical for this type of contract.

What counts as a material contractual obligation here. In particular: measuring, storing and making available the events reported by the customer in accordance with the agreed rules, securing the data in line with the state of the art, and complying with the obligations under the data processing agreement. The contract names these expressly so that nobody has to argue later about what its main point was.

Liability for ordinary negligence is limited in amount to the fees paid by the customer in the twelve months preceding the damaging event, but not less than EUR 5,000.

Liability is otherwise excluded; this applies in particular to lost profits. For an incomplete or incorrect evaluation this exclusion does not apply to the extent that it results from a breach of duty by the Provider — the paragraphs above continue to govern. An exclusion for precisely the case the service is bought for would not be a limitation but a hollowing-out.

What is not a breach of duty. The Provider owes the measurement of what can be measured. There is therefore no breach of duty where events cannot be measured because consent is missing or has been withdrawn, because a browser, a device or an advertising platform prevents the measurement, or because the customer has not installed the measurement points, or installed them incompletely or incorrectly. The publicly available overview of limitations describes these limits in detail; it forms part of the description of the service.

Export and contributory negligence. The customer may export their data at any time and at no extra charge. If they do not use this option and damage arises or increases as a result, § 254 of the German Civil Code applies. The Provider’s obligation to secure the data in line with the state of the art is unaffected; it cannot be shifted onto the customer.

The above limitations also apply in favour of the Provider’s legal representatives and agents.

Events of force majeure that make performance substantially more difficult or impossible release the affected party from its obligation to perform for the duration of the disruption. These include natural events, war, official orders, large-scale internet outages, and industrial action in which the party is not involved.

If the disruption lasts longer than 30 days, either party may terminate with immediate effect. Fees already paid for services not rendered are refunded pro rata.

The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods.

The exclusive place of jurisdiction for all disputes under this contract is the Provider’s registered office, provided the customer is a merchant, a legal entity under public law or a special fund under public law. The Provider is also entitled to sue at the customer’s general place of jurisdiction.

The Provider is neither willing nor obliged to take part in dispute resolution proceedings before a consumer arbitration board; contracts with consumers are not envisaged.

Amendments and additions to this contract require text form. This also applies to any waiver of this form requirement.

Should any provision be or become invalid, the remainder of the contract stays in force. The statutory rule takes the place of the invalid provision.

The language of the contract is German. Translations serve comprehension only; in case of discrepancies the German version prevails.