Terms and Conditions for International Transactions

The following are the terms and conditions for foreign, that means non-German-customers, for use of the „MotigoCounter“ service described herein. This is a service provided by Motigo GmbH & Co. KG. Motigo GmbH & Co. KG will hereafter be referred to as ("Motigo", "we", "us"), and the service provided at motigo.com will be hereafter referred to as "MotigoCounter" or "the Service". Please read these terms carefully. By clicking the „I accept“ button, completing the registration process and/or using the service, you are stating that you are eligible for an account and that you agree to be bound by all of the terms and conditions of of service ("Agreement"). The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.

1 Terms and definitions

  • "Account" refers to the billing account for the Service.
  • "Customer Data" means the data about the characteristics and activity of visitors to your website collected by use of the Client Code which is stored on the Servers and analyzed by the Processing Software.
  • "Click" is the unit of measurement of usage of the Service. A Click is used when the Client Code is executed on a webpage accessed by a visitor.
  • "Client Code" means the proprietary MotigoCounter code which is installed on a web page for the purpose of collecting Customer Data, together with any fixes or upgrades provided by you.
  • "Processing Software" means the proprietary MotigoCounter Software and any all upgrades to such, which analyzes the Customer Data and generates the Reports.
  • "Report" means the resulting analysis shown at motigo.com (or such other URL the Service may provide) including stored clicks.
  • "Servers" means the servers controlled by Motigo upon which the Customer Data is stored and analysed to provide the Reports.
  • "Software" means the Client Code and the service software which produces the reports.
  • "Subscription" means the billing terms agreed upon for your Account, between you and Motigo.

2 Access

  • To register for the Service, you must complete the registration process by providing Motigo with current, complete and accurate information as prompted by the registration form, including your e-mail address, username and password. You will at all times be responsible for maintaining the security of your account and password: you should protect your passwords and are fully responsible for your own and third party use of your accounts. Motigo cannot and will not be liable for any loss and/or damage resulting from your failure to comply with this security obligation.
  • Motigo, in its sole discretion, may accept or reject for any reason any person as a User of the Service.
  • You may not use the Service for any illegal or unauthorized purpose, nor violate any applicable laws (including but not limited to copyright laws). You are solely responsible for any and all activities that relate to your Account. You agree to notify Motigo immediately upon learning of any unauthorized use of your Account or any other breach of security.
  • From time to time, Motigo employees may log in to the Service under your customer password in order to maintain or improve the Service, including providing you with assistance on technical or billing issues. You hereby acknowledge and consent to such access.

3 Performance

  • Motigo hereby grants you a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the Software solely as necessary to use the Service for one or more web pages that you own and control (collectively, the "Website"). Subject to the terms and conditions of this Agreement, You may remotely access, view and download your Reports stored at www.motigo.com (or such other URL Motigo may provide). Your license of, use of and access to the Software and the Service (which may include, without limitation, the Software, documentation and reports) is conditioned upon your compliance with the terms and conditions of this Agreement.
  • You will not, nor will you allow any third party to: (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Client Code, the Processing Software, the documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software.
  • You will use the Software, Service and Reports solely for your own internal use, and will not make the Software or Service available for timesharing, application service provider or service bureau use. You will comply with all applicable laws and regulations in your use of and access to the Documentation, Software, Service and Reports. The license will expire immediately upon failure to comply with the terms of this Agreement. Upon such expiration, you must destroy all originals and copies of the Client Code in your possession and so certify in writing to Motigo within 3 business days of termination and cease any further use of the Service without the express written consent of Motigo.

4 Information Rights

  • You hereby allow Motigo and below mentioned third companies to collect, store and process your Customer Data. The Customer Data may include one or more cookies that Motigo and the third companies use to differentiate between users. Motigo and the thrid companiesmay examine Customer Data to provide you with technical support or to improve the Service.
  • Motigo may retain and use, subject to the terms of its Privacy Policy (located at http://www.motigo.com/privacy, or such other URL as Motigo may provide from time to time), information collected on your use of the Service, in order to, among others, generate anonymous aggregated reports. Motigo will not share personal information associated with you or your Website with any third parties unless Motigo (i) has your consent; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of Motigo, its users or the public; or (iii) provides such information in certain limited circumstances to third parties to carry out tasks on Motigo's behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by Motigo. When this is done, it is subject to agreements that oblige those parties to process such information only on Motigo's instructions and in compliance with this Agreement and appropriate confidentiality and security measures.
  • Unless you notify Motigo otherwise in writing, Motigo may identify you as a valued customer and optionally issue a press release that discloses that you are using the Service.
  • Motigo and you are the owner of the data regarding visitors to your website that Motigo collects. Motigo will use the data in compliance with its Privacy Policy. You are obligated to inform the visitors to your website about this.
  • Motigo works with third party companies to help tailor advertising that Motigo thinks may be of interest to you based on your use of Motigo and to otherwise collect and use data about your use of Motigo. These companies may deliver ads that might also place cookies and otherwise track user behavior. These companies may use information about user behavior in order to provide customized advertisements across various services and products. In the course of providing these services, products or placing advertisements, these third party companies may place or recognize a unique cookie on your computer, and may record information to these cookies based upon your activities on a Motigo and on third party websites. Each of these companies use this cookie information according to their own privacy and security policies. If you do not wish to have this information used for the purpose of serving you targeted ads, please contact us.

    The partners Motigo works with for these services are listed below and they have their own privacy statements which you should review:

    Captify: http://www.captify.co.uk/privacy.php
    Eyeota: http://www.eyeota.com/privacy-policy/

5 Duration, Payment, Cancellation

  • We use various billing service providers. When using such provider's services, you agree to follow and comply with the policies of such provider.
  • The MotigoCounter Services may be purchased on a periodic subscription basis under which payment is prepaid. Subscription Service will be automatically renewed and your credit card (or other payment method account) will be charged every month without further authorization from you.
  • You are responsible for paying any applicable fees and applicable taxes associated with the Service in a timely manner with a valid payment method. Unless otherwise stated, all fees are quoted in EURO (EUR). You agree to pay for all services that you purchase through the Service, and we may charge your selected payment method or send you an invoice for any such fees owed. You are required to keep your billing information current, complete, and accurate (e.g., a change in billing address, credit card number, or expiration date) and to notify Motigo if your selected payment method is cancelled (e.g., for loss or theft).
  • You are responsible for all charges incurred under your Account, as well as charges incurred by Accounts associated with or created through your Account, by you or anyone who uses your Account (including your co-workers, colleagues, team-members, etc.). If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. Your Account, as well as Accounts associated with or created through your Account, may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You are also responsible for paying any governmental taxes imposed on your purchase from or use of the Service, including, but not limited to, sales, use, or value-added taxes.
  • You are responsible for all charges incurred under your Account, as well as charges incurred by Accounts associated with or created through your Account, by you or anyone who uses your Account (including your co-workers, colleagues, team-members, etc.). If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. Your Account, as well as Accounts associated with or created through your Account, may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You are also responsible for paying any governmental taxes imposed on your purchase from or use of the Service, including, but not limited to, sales, use, or value-added taxes. Motigo offers three different service levels,
    1. Free of charge (= kostenlos)
    2. Business
    3. Pro
    at various monthly rates.
    The content of the services are described in detail in the product information. The three different service levels are not available, if your website has more than one million visitors per month.
    By ordering the service level „Free of charge (=kostenlos)“ you hereby allow Motigo to advertise on your Motigo website.
    Each service level has a contract duration of 12 months. Should you upgrade or downgrade your service level, the price of the chosen service level will be charged in subsequent monthly periods and the contract duration of 12 months starts again. You can uprade everytime, but it is only possible to downgrade to the end of the contract duration of 12 months of the former chosen higher level.
    - All fees are paid in advance and are not refundable.
    - You are solely responsible for properly cancelling your account. You can cancel your account at any time by contacting Motigo by e-mail or using the "contact" link on www.motigo.com. The cancelation period is 6 weeks to the end of the contract duration of 12 months. If you don´t cancel 6 weeks before the contract duration ends, the contract duration of 12 months starts again at the end of the previous contract duration. In case of breach of contract by you Motigo can cancel the account without a cancelation period. The cancelation declaration of Motigo will be sent by email to you.
  • All fees are paid in advance and are not refundable.
  • You are solely responsible for properly cancelling your account. You can cancel your account at any time by contacting Motigo by e-mail or using the "contact" link on www.motigo.com. The cancelation period is 6 weeks to the end of the contract duration of 12 months. If you don´t cancel 6 weeks before the contract duration ends, the contract duration of 12 months starts again at the end of the previous contract duration. In case of breach of contract by you Motigo can cancel the account without a cancelation period. The cancelation declaration of Motigo will be sent by email to you.
  • All Customer Data and Reports may be immediately deleted from the Service upon cancellation. This information cannot be recovered once your account is cancelled.
  • Motigo, in its sole discretion, has the right to suspend or terminate your Account and refuse any and all current or future use of the Service. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Customer Data and Reports in your Account.

6 Indemnification

  • You agree to indemnify, hold harmless and defend Motigo, at your expense, any and all third-party claims, actions, proceedings, and suits brought against Motigo or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Motigo or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your use of the Service, (iii) your violations of applicable laws, rules or regulations in connection with the Service, or (iv) your Brand Features. In such a case, Motigo will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. Motigo reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

7 Third Parties

  • If you provide access to your Account or any portion thereof to any third party or use the Service to collect information on behalf of any third party ("Third Party"), whether or not you are authorized to do so by Motigo, the terms of this Section shall apply to you.
  • If you use the Service on behalf of any Third Party, you represent and warrant that (a) you are authorized to act on behalf of, and bind to this Agreement, that Third Party, (b) as between the Third Party and you, the Third Party owns any rights to Customer Data in the applicable account, and (c) you shall not disclose Third Party's Customer Data to any other party without the Third Party's consent.
  • You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. Motigo makes no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, you shall take all measures necessary to disclaim any and all representations or warranties that may pertain to Motigo, the Service, the Software or the Reports, or use thereof. You agree to indemnify, hold harmless and defend Motigo, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against Motigo or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Motigo, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) any representations and warranties made by you concerning any aspect of the Service, the Software or Reports to Third Parties; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to your use of the Service, the Software or Reports; (c) violations of your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Services, the Software or Reports.

8 Caveat emptor

  • The information and services included in or available through the Service, including the Reports, may include inaccuracies or typographical errors. Changes are periodically added to the information herein. Motigo and/or its respective suppliers may make improvements and/or changes in the Service or Software at any time, with or without notice. Motigo does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service, the Software or any other software on the Server are free of viruses or other harmful components. You specifically agree that Motigo shall not be responsible for unauthorized access to or alteration of the Customer Data or data from your Website. Motigo does not guarantee storage of Customer Data. Storage space allocated to you is subject to agreement with Motigo or the amount of available space.
  • Motigo does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond Motigo's control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Motigo or your servers are located or co-located. Complete accuracy in all aspects of your Statistics at all times also is not guaranteed.
  • The Service, the software and reports are provided „as is“ and there are no warranties, claims representations made by Motigo, either express, implied, or statutory, with respect to the service, the software, the documentation and reports, including warranties of quality, performance, non-infringement, merchantability, or fitness for a particular purpose, nor are there any warranties created by course of dealing, course of performance, or trade usage. Motigo doesn´t warrant that the service, the software or reports will meet your needs or be free from errors, or that the operation of the service will be uninterrupted. The Foregoing exclusions and disclaimers are an essential part of this agreement and formed the basis for determining the price charged for the service. Some states don´t allow exclusion of an implied warranty, so this disclaimer may not apply to you.

9 Limitation of Liability

  • Motigo won´t be liable to user or any third party claimant for any indirect, special, punitive, consequential (including, without limitation, lost profits or lost data collected through the service), or incidental damages wether based on a claim or action of contract , warranty, negligence, strict liability, or other tort, breach of any statutory duty, indemnity or contribution, or otherwise, even if Motigo has been advised of the possibility of such damages. The exclusion contained in this paragraph shall apply regardless of the failure of the exclusive remedy provided in the following paragraph. Some states don´t allow the limitation or exclusion of liability for incidental or consequential damages, so the limitations or exclusions in this and the foregoing paragraph may not apply to you.
  • Motigo's total cumulative liability to you or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed EUR 500.

10 Notice of Proprietary Rights

  • The Service, which includes but is not limited to the Client Code and the Software and all intellectual property rights in the Service are, and shall remain, the property of Motigo. All rights in and to the Software not expressly granted to you in this Agreement are hereby expressly reserved and retained by Motigo and its licensors without restriction, including, without limitation, Motigo right to sole ownership of the Software and logos, trademarks, trade secrets, databases, reports, and Web site.
  • Without limiting the generality of the foregoing, you agree not to (and to not allow any third party to): (a) sublicense, distribute, or use the Service outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Processing Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Motigo; (d) register, attempt to register, assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Motigo other than in the name of Motigo; or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.

11 Modifications to Terms of Service and Other Policies

  • Motigo reserves the right at any time and from time to time to update, modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Motigo shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
  • Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Service at any time at: http://www.motigo.com/terms.
  • Downgrading your service level may cause the loss of Data, features, or capacity of your Account. Motigo does not accept any liability for such loss.

12 General Conditions

  • Your use of the Service is at your sole risk. The Service is provided on an "as is" and "as available" basis.
  • Technical support is only provided to paying account holders and is only available via email or help desk.
  • You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, Motigo, or any other Motigo service.
  • You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Motigo.
  • You understand that the technical processing and transmission of the Service, including your Data, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
  • Motigo technical staff may instruct you, from time to time, to perform modifications to the Client Code installed in your Website. You agree to cooperate and perform any required modifications.
  • You grant to Motigo a perpetual, non-exclusive, worldwide, royalty-free license to use and display your name, the name of your company, your website address, your company's website address and your company's logo on Motigo websites and marketing materials and Motigo client lists.

13 Earnings Disclaimer

  • Every effort has been made to accurately represent the Service and it's potential. There is no guarantee that you will earn any money using the techniques and ideas in this Website. Examples in the Website are not to be interpreted as a promise or guarantee of earnings. Earning potential is entirely dependent on the person using the Service, ideas and techniques.
  • No express or implied guarantees of income are made when purchasing the Service. You agree that we are not responsible for the success or failure of your business decisions.

14 Miscellaneous; Applicable Law and Venue

  • Motigo shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
  • This Agreement shall be governed by and construed under the laws of Germany without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and German law, rules, and regulations, German law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Cologne, Germany. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. Any notices to Motigo must be sent to: Motigo GmbH & Co. KG, Rotdornweg 6, 52355 Düren, Germany. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights hereunder without Motigo's prior written consent, and any such attempt is void. The relationship between Motigo and You is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.

15 Terms of Revocation

Right of revocation for a consumer as per § 13 of the German Commercial Code
If you are a private consumer, you have the right to withdraw from this agreement within fourteen(14) days without stating a reason. The period of revocation is fourteen(14) days from the date on which the goods were accepted by you or by a third person appointed by you, who is not the carrier. In order to exercise your right of revocation, you must notify us - Motigo GmbH & Co. KG, Rotdornweg 6, 52355 Düren, Germany, Tel.: +492415903649, Fax: +492421781319 , E-Mail: post@motigo.com - accordingly in an unequivocal statement (e.g. letter sent by post, telefax or e-mail) of your decision to withdraw from the agreement. You may use the attached sample revocation form for this purpose, however this is not mandatory. Sending notification of your intention to exercise your right of revocation prior to expiry of the period of revocation shall be sufficient to comply with the period of revocation.

Consequences of revocation
If the customer withdraws from this Contract, we must reimburse any payments we have received from the customer, including delivery costs (excluding any additional costs incurred if the customer has selected a different type of delivery to the cheapest standard delivery option offered by us) without delay, but no later than fourteen (14) days after the day on which we receive the notice of the customer’s withdrawal from this Contract. We will use the same payment method the customer used for the original transaction in order to provide the reimbursement, unless otherwise expressly agreed; under no circumstances will the customer be charged a fee for this refund. We may withhold the reimbursement until we have received the returned goods or until the customer has provided proof that he/she has returned the goods, whichever is earlier. The customer must return or hand over the goods to us without delay and no later than fourteen (14) days from the date on which he/she notifies us of withdrawal from this Contract. The deadline is deemed to be met if the customer sends the goods before the expiry of the fourteen-day deadline. We shall bear the costs of returning the goods. The customer shall only be liable for any diminished value of the goods if this loss in value is attributable to any use or handling of the goods which is not deemed necessary in order to verify the condition, features and functioning of the goods.

Revocation form
If you wish to withdraw from the agreement, please fill in this form and send it back to:
Motigo GmbH & Co. KG
Rotdornweg 6
52355 Düren
Germany

Fax: +492421781319
E-Mail: post@motigo.com
I/we (*) hereby withdraw from the agreement signed by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*):

Ordered on (*)/received on (*) _________________________________________

Name of consumer(s): _________________________________________

Address of consumer(s):

________________________________________

________________________________________

________________________________________

_____________________________ ________________ Signature of consumer(s):
Date
(*) delete as appropriate