On www.seobility.net makeitweb GmbH, located at Lorenzer Straße 29, 90402 Nürnberg, (legal notice on: http://www.seobility.net/en/impressum) offers a service for analyzing and improving websites in accordance with the regulations on search engine optimization. This website aims to provide a basis for the required acquisition and processing of data and to enable the customer to use the service and tools via the Internet, within the scope of this contract. This offer is exclusively intended for companies, trade professionals, self-employed persons, freelancers and authorities.
§ 1 Scope
The following terms and conditions shall apply to all customers of makeitweb GmbH (hereinafter referred to as T&C).
Any differing provisions on the part of the customer shall not apply, even if makeitweb GmbH did not expressly object to them.
§ 2 Conclusion of contract
The products and pricings that the customers can find on the website www.seobility.net are not to be regarded as a binding offer by makeitweb GmbH, they are subject to change and non-binding.
The contract will be concluded between the customer and
Lorenzer Straße 29
Phone: 0049 911 23756261
Manager: Thomas Gareis
Register court: Amtsgericht Nürnberg
Commercial register number 26545
VAT ID: DE 272712190
makeitweb GmbH is permitted to store data uploaded by the customer in the seobility.net system. For the duration of this contract and beyond, the customer grants makeitweb GmbH the right to use the data transmitted in order to enable makeitweb GmbH to fulfill their contractual obligations. This agreement also applies to any brands, logos, company names and other trademarks that makeitweb GmbH is required to use and that are necessary within the scope of communication with makeitweb GmbH.
The contract between the customer and makeitweb GmbH shall be concluded either when makeitweb GmbH accepts the customer request or when makeitweb GmbH fulfills the first contractual obligation. If makeitweb GmbH allows the customer to actively use the service, this shall be regarded as an implicit consent on the part of makeitweb GmbH to the conclusion of a contract. makeitweb GmbH may decline a customer request without stating any reasons.
§ 3 Contract term, termination & tariff changes
The contract shall have a term of at least one month and can be terminated at any time to the end of the term without notice; otherwise the contract shall be extended by another month or by the term selected.
The contract must be terminated in written form or via the termination feature on the website.
The free tariff can be terminated at any time by deleting the account.
The customer can switch to a higher tariff ("upgrade") at any time. The monthly fee that has already been paid will then be credited to the customer's account or offset against the new tariff.
The customer may only choose a lower tariff ("downgrade") after the term of the contract has expired. Data and services that are only available in a superior tariff shall be deleted automatically after expiration of the term of contract.
The right to extraordinary termination shall remain unaffected. An extraordinary termination is justified, in particular, if the customer fails to fulfill his monthly payment obligation within the stipulated time in spite of explicit reminders, or if the client violates any obligations under these T&C.
The scope of the services offered is explained both in these T&C and on http://www.seobility.net/en/pricing. However, makeitweb GmbH may change, improve and/or expand their services at any time. If necessary for legal reasons or if the customer sent a declaration of consent to makeitweb GmbH, the scope of services might be limited. Should the customer fail to object in written form to the notification sent by makeitweb GmbH informing him about the change within a maximum of six weeks after being notified, the customer's consent to the change shall be regarded as valid.
The price list on http://www.seobility.net/en/pricing refers to the service of seobility.net and to the respective account use at the time the customer concludes a contract, unless a special price has been agreed upon between the customer and makeitweb GmbH. Prices that differ from the price list must always be agreed upon in written form.
In case of contract extension, makeitweb GmbH is permitted to change their prices. In this case, the customer shall be informed via the e-mail address he indicated about the new prices within at least four weeks prior to the next contract extension. If the net price increases, the customer shall be entitled to terminate the contract to the end of the next term without notice. Otherwise, the net price rise for the next contract extension shall be regarded as accepted by the customer.
makeitweb GmbH is entitled to make minor deviations and technical changes of the service, as they are just and reasonable for the customer. In case of technical improvements of the offer after the conclusion of the contract, the customer is not entitled to use a previous version. If, in individual cases, the new technically improved version of the service provided by makeitweb GmbH imposes a burden on the customer for special reasons, the customer is entitled to withdraw from the contract, to the exclusion of any other rights. The contract must be canceled immediately and in written form.
All prices of services provided by makeitweb GmbH as defined in this contract that can be found on the price list on the website under http://www.seobility.net/en/pricing are net prices, excluding statutory VAT.
§ 5 Due date & invoicing
Fees are due in advance at the beginning of the contract term. The customer shall receive an invoice including all necessary data via e-mail as a PDF file.
The credit card account will be charged or the due amount will be collected via direct debit upon conclusion of the order. The customer is obliged to ensure that his payment details are correct and that he has sufficient funds in the bank account / credit card account he indicated. Any fees resulting from failed directs debits or return debit notes have to be borne by the customer, unless makeitweb GmbH is responsible for them.
If neither credit card payment nor direct debit have been agreed upon, all invoices must be paid to makeitweb GmbH to the account indicated within a maximum of 10 days after invoicing. After expiry of this deadline, the customer is in default of payment.
If the customer fails to clear the entire debt, all payments received by makeitweb GmbH shall first be used to account for the costs, then for the interests and at last for the main service. A different way to clear the debts cannot be unilaterally decided upon.
If the customer is in default of payment after he received a reminder, makeitweb GmbH is entitled to block the customer from accessing their services and to no longer make their service available to the customer until the payment has been made. Moreover, in case of default of payment, makeitweb GmbH is entitled to block any access and to immediately cease providing the services to the contractual partner.
§ 6 Access authorization
In order to use the content and services offered by makeitweb GmbH on seobility.net for which registration is mandatory, the customer has to register by applying for an access account. makeitweb GmbH is entitled to use appropriate measures to check whether the information provided by the applicant is correct. Access authorizations that have been granted cannot be transferred to other persons.
The customer is responsible for keeping his user name and password confidential. Furthermore, the customer has to bear any costs that arise if third parties use his user identification. It is also the customer's duty to keep his personal password and his user identification safe from third-part access, from abuse and/or loss. The customer shall indemnify makeitweb GmbH from any costs and claims by third parties that may arise if the customer violates the aforementioned obligations.
§ 7 Confidentiality & privacy
makeitweb GmbH is obliged to treat the customer's personal data as confidential and not to disclose these data to any third parties without the customer's explicit consent, unless makeitweb GmbH is required by law or by court order to disclose the data to the law enforcement authorities. Any subcontractors and technical service providers working with makeitweb GmbH are obliged to follow the confidentiality and privacy stipulations as well. In addition, the privacy statement of makeitweb GmbH shall apply. This privacy statement can be found on http://www.seobility.net/en/datenschutz
§ 8 Granting of rights
makeitweb GmbH is permitted to store data uploaded by the customer in the seobility.net system. For the duration of this contract and beyond, the customer grants makeitweb GmbH the right to use the data transmitted in order to enable makeitweb GmbH to fulfill their contractual obligations. This agreement also applies to any brands, logos, company names and other trademarks that makeitweb GmbH is required to use and that are necessary within the scope of communication with makeitweb GmbH (e.g. in magazines, forums, blogs and on other websites).
§ 9 The customer's rights and obligations of usage
The customer uses the service provided by makeitweb GmbH to analyze websites concerning aspects of search engine optimization. If the customer uploads content that is protected by copyright or other proprietary right into the services of makeitweb GmbH, the customer agrees to grant makeitweb GmbH and their partners all necessary, non-exclusive, global, continuous and gratuitous rights to use this content solely for providing their services and for presentation within these services. Furthermore, the customer acknowledges that he is the proprietor of these rights and that he will indemnify makeitweb GmbH from any claims by third parties. The content of the websites might have to be stored and managed on servers so that makeitweb GmbH can provide the service they offer.
In particular, the right of usage refers to the permission to analyze, technically reproduce and change content and to disclose content to third-parties in order to ensure the provision of the service.
Unless otherwise agreed upon, the account provided to the customer is nontransferable to other legal or natural persons. If the customer uses the service provided by makeitweb GmbH for a company or organization, he is obliged to agree that these T&C shall apply to this company. Moreover, the customer shall indemnify makeitweb GmbH and their representatives and employees against any claims by this company. Furthermore, the customer shall indemnify makeitweb GmbH from any claims by third parties that may arise from the use of the services or that may arise in case the customer violates these contractual terms; this includes any costs and claims from damages, legal actions, court proceedings and court decisions, and court and lawyer fees. The customer's personal obligations under this contract remain unaffected.
Any content that the customer will gain access to via the service provided by makeitweb GmbH is only intended for his own use and solely for the respective purpose.
If the copyright remains with makeitweb GmbH and if the documents clearly show that they result from services offered by makeitweb GmbH, statistical graphs and screen shots of the customer account are excluded. If these documents are used digitally, they must link to the seobility.net website.
After the conclusion of the contract in accordance with article 2 section 1, the customer agrees to carefully select the content and to make sure that this content is truthful. The customer is prohibited from managing content via his account that violates applicable law, in particular criminal law, copyright or competition law. Any content that violates third party's rights such as trademark law, the right of publicity or other personality rights is prohibited as well. The customer shall fully indemnify makeitweb GmbH from any third-party claims arising from the aforementioned content. The customer shall bear any costs that makeitweb GmbH incurs if legal representation is required.
makeitweb GmbH is not obliged to check the content that the customer uploads into the service for potential infringements of rights or for potential violations of third-party rights. The customer assures that he will only upload content into the service for which he owns the usage rights or for which the usage rights have been transferred to him in order to analyze the content. If makeitweb GmbH learn of illegal content, they are entitled to completely or partially remove content or to block the access to this content at their sole discretion, without informing the customer. In particular in case of data with illegal and/or inappropriate content or in case of data that violate these T&C and/or third-party rights, makeitweb GmbH is entitled to remove the content in question. In this case, the customer does not have any claims concerning justified removal or justified blocking of the access to the service.
§ 10 Subcontractors
Within the scope of the service provided, makeitweb GmbH is allowed to commission subcontractors and/or technical service providers. If the customer grants makeitweb GmbH usage rights, reproduction rights or similar rights, makeitweb GmbH is allowed to grant the persons commissioned sub-licenses concerning these rights, if these are required to provide the services.
§ 11 Availability & downtime
makeitweb GmbH guarantees that the Internet web server will be available 97 % on average per year. Moreover, makeitweb GmbH reserves the right to temporary limitations of the services under this contract, in connection with capacity limits, within the scope of maintenance or security-related measures. In case of power outages, Internet breakdowns or server breakdowns which are beyond the control of makeitweb GmbH, makeitweb GmbH shall not assume any liability for the correct functioning of telephone lines to the server defined in this contract. If the customer has been unable to access the services defined in this contract for more than 48 hours in a row, makeitweb GmbH shall grant him a price reduction of 20 percent on the monthly fee in the next invoice. This price reduction for the following month must be requested by the customer, will be reviewed by makeitweb GmbH and granted if justified.
Further claims are excluded unless in case of a grossly negligent or deliberate act on the part of makeitweb GmbH.
Article 536 of the German Civil Code shall remain unaffected.
§ 12 Liability
Neither makeitweb GmbH nor their associated companies, suppliers or distribution partners make any specific representations regarding the services, and they do not assume any guarantees. Furthermore, makeitweb GmbH does not make any representation concerning the content of the service offered or concerning specific features of the services, their reliability or their fitness for the customer's purpose.
Moreover, makeitweb GmbH does not assume any guarantee concerning recommendations for the customer, in particular concerning potential success in improving the search engine exposure of the websites checked. On account of the constantly and rapidly changing and unforeseeable technical progress, makeitweb GmbH is unable to make authoritative statements or recommendations, therefore the customer shall bear the sole risk for the implementation of the potential actions suggested.
Should makeitweb GmbH, their legal representatives or their agents act deliberately or grossly negligent and thereby cause damage, they shall assume liability. In case of violation of core contractual obligations, death and injury to body or health, makeitweb GmbH shall assume liability also in cases of ordinary negligence.
In case of a slightly negligent violation of essential contractual obligations, makeitweb GmbH shall assume liability. In this case, however, the liability shall be limited to the usual damages. Likewise, legal representatives or agents of makeitweb GmbH shall assume liability, if they act slightly negligent and thus violate their obligations.
Only in case of deliberate or grossly negligent behavior shall makeitweb GmbH be responsible for damages resulting from a delay in performance.
makeitweb GmbH shall not be liable for losses or damages caused by third parties.
Damage claims on the part of the customer are limited to 50 % of the average annual contract volume per case of damage (maximum liability amount). This shall only apply if the claims are not covered by existing insurances and if they do not arise from deliberate or grossly negligent acts by makeitweb GmbH or by agents commissioned by makeitweb GmbH.
makeitweb GmbH shall only assume liability for indirect damage such as loss of profit if the damage has occurred due to deliberate or gross neglect on the part of makeitweb GmbH or if makeitweb GmbH provides a guarantee.
§ 13 Offset & non-assignability
The customer is only entitled to offset indisputable or legally binding claims. The customer can only assert the right to withhold performance and/or the right of retention in case of claims that are based on the same legal relationship and have been approved by makeitweb GmbH or determined without further legal recourse, except for deliberate or grossly negligent acts.
If a notice of defects is asserted, the customer may only withhold a proportion of payment that is adequate in relation to the defects occurred. If the customer is an entrepreneur, he is only entitled to withhold payment if a notice of defects can be asserted beyond reasonable doubt.
The customer is not entitled to assign any claims against makeitweb GmbH to third parties. Any assignments of this type shall be void against makeitweb GmbH at any rate.
§ 14 Limitation period
The customer is obliged to check any invoices, balance sheets and balance of account statements issued by makeitweb GmbH for their correctness and completeness. makeitweb GmbH is entitled to except any accrued default charges from these balance sheets and balance of account statements and to bill them separately. Any objections against balance sheets and balance of account statements must be entered by the customer within a maximum of 30 days after receiving the respective documents, other objections must be entered immediately. Failure to object in due time shall be regarded as the customer's consent. Any legal claims regarding justified objections entered after this deadline shall remain unaffected.
There are no subsidiary agreements. Alterations and additions to the present T&C are only valid if confirmed in written form by a manager of makeitweb GmbH who is authorized to solely represent makeitweb GmbH. Any other agreements have to be recorded in writing without delay. Customer orders or special conditions shall only be regarded as accepted once makeitweb GmbH has accepted them in written form. Use of telefax or e-mail shall be sufficient to satisfy the requirement for written form.
If individual or several stipulations are invalid, the effectiveness of the remaining stipulations shall remain unaffected. The invalid stipulation shall be replaced by a legally valid stipulation that matches the economic purpose of the original, invalid stipulation.
If the parties fail to inform each other of a change in their addresses, a letter by registered mail to the last known address shall suffice to express a declaration of intent to the other party. In this case, the declaration will come into effect at the time it would have taken to send it by regular mail without a change in address.
§ 16 Final clauses
German law shall apply exclusively, even if the services are used outside of the Federal Republic of Germany.
To the extent allowed by law, Nuremberg shall be the place of performance and the exclusive place of jurisdiction.
The customer shall bear any Internet service provider costs (telecommunications costs).
makeitweb GmbH is entitled to change or extend their T&C. The customer shall be informed in writing within a minimum of four weeks in advance about planned changes to the T&C. If the customer fails to object to the change or extension within four weeks after being notified, his consent shall be regarded as valid. Should the customer object to the change or extension, makeitweb GmbH shall be entitled to terminate the contract with notice.
In case of continuing obligation, makeitweb GmbH is entitled to replace stipulations of existing contracts if they are void, as well as to adjust stipulations to changes in legal regulations, unless the change in the stipulations puts the customer in a worse condition than the stipulation that was originally valid at the time the contract was concluded.