1.4 The contract language is German. In the event of contradictions between different language versions, the German language version is decisive.
1.5 elbwalker is only a provider of elbwalker Analytics and has no economic or legal connection with the user's offer. elbwalker is neither a vicarious agent of the user nor a party to contracts concluded between the user and third parties.
2.1 elbwalker is a web service provider and operates a self-developed internet-based software solution that collects, stores and analyzes user interactions on websites and within applications as well as data migration via interfaces to and from third-party systems allowed (hereinafter referred to as elbwalker Analytics). The subject of this contract is the temporary provision of the software application hosted on servers of elbwalker or in data centers commissioned by elbwalker for the use of their functionalities via the Internet, the granting of corresponding mutual rights of use and the provision of storage space for those generated and generated by the user through the use of elbwalker Analytics / or the use of data required by elbwalker Analytics (hereinafter "application data") to the agreed extent against payment of the agreed fee. The specific functional scope of elbwalker Analytics results from the service description at www.elbwalker.com. The service description serves to present the service offered and does not constitute a guarantee.
2.2 elbwalker's area of responsibility begins at the transfer point. The transfer point to elbwalker Analytics is the interface between the Internet medium and the elbwalker environment, which is hosted on the elbwalker servers or in the data centers used by elbwalker.
2.3 elbwalker uses technologies from third-party providers as part of its services. The availability of these technologies is beyond the control of elbwalker. The provision of services by elbwalker is therefore subject to the technical and / or legal availability of third-party technologies.
Insofar as we obtain your consent for the processing of personal data, Article 6 (1) (a) GDPR serves as the legal basis for the processing of personal data. When processing personal data that is necessary to fulfill a contract to which you are a party, Article 6 (1) (b) GDPR serves as the legal basis. This also applies to processing operations that are necessary to carry out pre-contractual measures. If the processing of personal data is necessary to fulfill a legal obligation to which our company is subject, Article 6 (1) (c) GDPR serves as the legal basis If it is necessary to safeguard a legitimate interest of our company or a third party and if your interests, fundamental rights and freedoms do not outweigh the first-mentioned interest, Article 6 (1) (f) GDPR serves as the legal basis for processing.
4.1 elbwalker strives to make elbwalker Analytics fully available in addition to the application data. The availability of elbwalker Analytics is 98% on an annual average. In particular, for technical reasons, such as necessary maintenance and repair work, access to elbwalker Analytics may be temporarily restricted. Planned technical failures must be reported to the user at least 7 days in advance. elbwalker is not responsible for the services of third parties that are required for the use of elbwalker's services (e.g. internet access).
4.2 If elbwalker is hindered in the execution of the order by a strike, lockout, official intervention or other circumstances through no fault of its own, delivery and service deadlines are considered to be extended by the duration of the hindrance and by an appropriate start-up time after the end of the hindrance. elbwalker will notify the user of the handicap; elbwalker is not in default for this period.
4.4 The user must report any disruptions immediately. The manner in which the fault is dealt with is at the discretion of elbwalker.
5.1 elbwalker provides the user with elbwalker Analytics for a fee for the duration of the contractual relationship.
5.2 elbwalker will provide, maintain and maintain the necessary technical server landscapes for the provision of the services. In this respect, elbwalker is entitled to use third-party companies as subcontractors.
5.3 During the term of the usage contract, elbwalker backs up the data on the server with an up-to-date data backup medium on a daily basis. There is no contractual obligation to archive the data backup media. The user has no right to the surrender of the data backup medium.
5.4 elbwalker is entitled to change and optimize elbwalker Analytics to the extent that the purpose of this contract is not significantly impaired or endangered. With regard to services offered free of charge, the elbwalker is entitled to discontinue these at any time without notice.
5.5 elbwalker is entitled to use analyzes and application data generated via elbwalker Analytics in anonymous form to optimize and improve elbwalker Analytics and for marketing purposes. This also applies beyond the term of the contract.
6.1 The user assures that the information provided by him is correct and complete. He will immediately inform elbwalker of any changes to the data required to execute the contract. He will only use elbwalker to the contractually agreed scope and fulfill all obligations necessary for the performance of this contract in a timely, complete and technically proper manner, in particular pay the agreed remuneration on time.
6.2 The user will in particular..
6.2.1. Keep the usage and access authorizations assigned to him or the users as well as agreed identification and authentication safeguards secret, protect them from access by third parties and do not pass them on to unauthorized users. These data are to be protected by suitable and customary measures. The user will inform the elbwalker immediately if there is a suspicion that the access data and / or passwords could have become known to unauthorized persons;
6.2.2. create the agreed entry requirements;
6.2.3. comply with the restrictions / obligations with regard to the rights of use according to section 6 of this contract, in particular a) no information or data is called up or allowed to be called up in an unauthorized manner, or programs operated by elbwalker are interfered with or allowed to intervene, or penetrate or encourage such penetration into elbwalker's data networks b) to comply with this contract;
6.2.4. Obtain the necessary consent from the data subject, insofar as he collects, processes or uses personal data when using the software and no statutory permission applies;
6.2.5. Before sending data and information to elbwalker Analytics, check them for viruses and use state-of-the-art virus protection programs;
6.2.6. if he transmits elbwalker data to generate application data with the help of elbwalker Analytics, back it up regularly and according to the significance of the data and create his own backup copies in order to enable the reconstruction of the same if the data and information are lost;
6.2.7. if and to the extent that the technical possibility is given to him by mutual agreement, regularly back up the application data stored on the server by downloading.
6.3 The user must ensure that the necessary hardware and software for internet use and the necessary internet access are available and kept up to date. The provision of these requirements as well as the telecommunication services of the transmission services from the server to the devices used by the user are not the subject of this contract, but are the responsibility of the user.
6.4 When using elbwalker Analytics, the user will observe all applicable laws and other legal provisions of the Federal Republic of Germany. The user is responsible for ensuring that elbwalker Analytics is not misused.
6.5 The user will only assign his rights from this contract to third parties with the prior consent of elbwalker; Section 354 a of the German Commercial Code (HGB) remains unaffected.
6.6 After blocking and / or termination by elbwalker, the user is prohibited from opening a new user account. User accounts are not transferable.
7.1 The user and any employees he may be entitled to receive the non-exclusive right, limited in time to the term of the respective contract and subject to remuneration for chargeable services, to access elbwalker Analytics via telecommunications and to use the functionalities associated with elbwalker Analytics in accordance with this contract . The user does not receive any further rights, in particular to software applications, source codes or the operating software.
7.2 The user is not entitled to use elbwalker Analytics beyond what is permitted under this contract. In particular, the user is not permitted to reproduce, sell or lend, rent or lend elbwalker Analytics or parts thereof for a limited period of time. The rights according to §§ 69 d, 69 e UrhG remain unaffected.
7.3 If the user violates the regulations in Section 7.1. and 7.2. for reasons for which he is responsible, elbwalker can block the user's access to elbwalker Analytics after notifying the user in advance (at least in text form) if the violation can be proven to have been eliminated. If the user continues to violate or repeatedly violates the regulations in Section 7.1 despite a corresponding warning from elbwalker. and 7.2., and if he is responsible for this, the elbwalker can extraordinarily terminate the contract without observing a period of notice.
7.4 In the event of a culpable and unauthorized transfer of use or use, the user has to pay elbwalker an immediately due contractual penalty in the amount of three times the monthly transfer price. elbwalker reserves the right to assert claims for damages. In this case, the contractual penalty will be offset against the claim for damages.
7.5 If elbwalker provides new versions, updates, upgrades or other new deliveries with regard to elbwalker Analytics during the term, the above rights also apply to these.
7.6 The user grants elbwalker, free of charge, the irrevocable, unrestricted right in terms of time, content and space to the application and analysis data generated by elbwalker Analytics at the time of their creation, to provide this data in anonymised form for their own purposes (including to improve and promote the software) to use.
elbwalker is not responsible for the content provided by the user. In particular, elbwalker is not obliged to check the content for possible legal violations. As far as content is transmitted or made available, the user is responsible for ensuring that it is free of third party rights, in particular copyrights, naming and trademark rights that restrict or exclude use / processing in accordance with the scope agreed here. The processing of illegal, right-wing radical, pornographic, racist, immoral content is prohibited, as is the transmission of content that violates the decency of all those who think cheaply and justly. If a third party asserts claims against elbwalker that are based on the culpable violation of their property rights by the user, the user releases elbwalker from all costs and damages upon first request. In the event of a legal dispute, he bears all the necessary costs in this regard. The parties must immediately inform each other about the assertion of the claim by the third party.
9.1 Unless otherwise agreed, prices are net in EURO plus statutory sales tax.
9.2 Es gelten die zum Vertragsschluss gültigen Preise von elbwalker.
9.3 Invoices are created electronically and sent by email. The remuneration is due upon receipt of the invoice and is payable within two weeks of the invoice date. The user hereby declares his / her consent.
9.4 The remuneration is based on the commissioned service and the selected remuneration model.
9.5 Billing takes place on the 1st of the calendar month for the previous month.
9.6 If the user is in arrears with at least 2 monthly payments, elbwalker is entitled, after an unsuccessful reminder, to temporarily block access to elbwalker Analytics after a threat by e-mail until full payment has been made. elbwalker will inform the user of the announced date for the temporary blocking as part of the threat. The temporary blocking of services does not affect the user's payment obligation.
10.1 The elbwalker warranty does not extend to damage and / or malfunctions caused by the user culpably violating the provisions of this contract. Upon request, the user will support elbwalker to the best of his ability in identifying and eliminating errors.
10.2 If a defect occurs in the services provided by elbwalker, elbwalker will either remedy this within a reasonable period of time at its discretion or provide the service complained about again free of defects (overall subsequent performance).
10.3 elbwalker has unlimited liability for damages or reimbursement of wasted expenses - in the event of willful intent or gross negligence, - for injury to life, limb or health, - in accordance with the provisions of the Product Liability Act and - within the scope of a guarantee assumed by elbwalker - in the event of fraudulent intent by elbwalker. The same applies in the event of a debtor's default by elbwalker for claims on default interest, on the default lump sum in accordance with Section 288 (5) of the German Civil Code (BGB) as well as on compensation for damage caused by default caused by the legal costs.
10.4 In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (cardinal obligation), the amount of elbwalker's liability is limited to the damage that is foreseeable and typical for the type of business in question. The same applies in the event of default by elbwalker or the impossibility of rendering the service for which elbwalker is responsible.
10.5 Liability for data loss is limited to the typical restoration effort that would have occurred if backup copies had been made regularly and in accordance with the risk, unless one of the prerequisites according to Section 10.3 applies. and 10.4. before.
10.6 elbwalker is not liable for the functionality of the telecommunication connection (telephone / ISDN / DSL lines etc.) to its own server in the event of power failures or failures of servers that are beyond the control of elbwalker. Furthermore, elbwalker is not liable for damage caused by force majeure or comparable events. Strikes, pandemics, official orders, the failure of telecommunication networks or gateways of other operators as well as disruptions in the area of other telecommunication or service providers are considered comparable events.
10.8 There is no further liability on the part of elbwalker.
10.9 The above limitation of liability also applies to the personal liability of employees, representatives and organs of elbwalker.
11.1 Information on data collection by elbwalker can be found in the data protection notice at www.elbwalker.com/privacy and the scheme for collecting anonymized application data at docs.elbwalker.com/data-model/data-schema.
11.2 The user declares that all personal data made available for processing within the scope of elbwalker Analytics has been lawfully transmitted to elbwalker Analytics in accordance with the applicable data protection law and may be processed by elbwalker Analytics. The user is prohibited from transmitting personal data of an end user to elbwalker Analytics without authorization or from having elbwalker Analytics process it.
11.3 The user releases elbwalker from all claims by third parties due to data protection and personal rights violations that should be raised against elbwalker in connection with the processing of the personal data transmitted by the user to elbwalker Analytics, upon first request. The user is obliged to defend against unfounded claims by third parties with regard to the rights mentioned above. Any third-party claims that become known to the user must be reported to elbwalker immediately. The exemption also includes the reimbursement of costs that elbwalker incurs or has incurred through legal prosecution / defense. Any further claims for damages by elbwalker remain unaffected. Insofar as elbwalker is responsible for the infringement itself, claims against the user are excluded.
11.4 The user is responsible for the permissibility of data processing. elbwalker supports the user insofar as data protection regulations provide for this. Further details on data processing are regulated in separate order processing contracts that elbwalker makes available for download.
11.5 The parties undertake to keep confidential information from the other party confidential. This obligation also continues after the end of the contractual relationship. Confidential information that (a) It can be proven that the recipient already became aware of this when the contract was concluded or that it became known from a third party thereafter; (b) which are publicly known upon conclusion of the contract or are made publicly known thereafter; (c) which must be disclosed due to a legal obligation or by order of a court or an authority. As far as possible and permissible, the recipient obliged to disclose will inform the other party in advance and give them the opportunity to take action against the disclosure.
12.1 Contracts that are subject to a fee begin with the acceptance of the order by elbwalker. The minimum term is one month.
12.2 The right to terminate for good cause remains unaffected. Important reasons are in particular - but not listed exhaustively: (a) the culpable breach of essential contractual obligations if, despite a warning, remedial action is not taken within a reasonable period of time; (b) Technical obstacles that were not foreseeable when the contract was concluded and which make the continuation of the services impossible.
12.3 The right to terminate in accordance with Section 543 (2) No. 1 BGB due to failure to use the contract in accordance with the contract is only permitted if elbwalker has been given sufficient opportunity to remedy the defect and this has failed.
12.4 Terminations must be in text form (e.g. email).
12.5 User accounts are closed upon termination of the contract. A final deletion of the account and the stored content and application data takes place 14 days after the end of the contract, unless the user deletes the account prematurely in the login area or extends the contract again within these 14 days.
The European Commission provides a platform for online dispute resolution (OS). The EU Commission's platform for online dispute resolution can be found here: www.ec.europa.eu/consumers/odr The provider's email address is: firstname.lastname@example.org
15.1 The contract text is saved by elbwalker and can be viewed at www.elbwalker.com/legal/terms.
15.2 German law applies to the entire contractual relationship between elbwalker and the user, excluding UN sales law.
15.3 The place of performance for all claims by elbwalker is the seat of elbwalker.
15.4 Hamburg is deemed to be the agreed place of jurisdiction if the contracting parties are merchants, legal entities under public law or special funds under public law. However, elbwalker is also entitled to sue the user at his general place of jurisdiction. This does not apply if compulsory legal regulations within the meaning of Article 24, 25 or 26 EuGVVO in the version dated December 12, 2012 conflict.
15.5 Should a provision be wholly or partially ineffective or lose its legal validity later, this shall not affect the validity of the remaining provisions. If the contract contains a loophole, the same applies.
STATUS February 2022