General Terms & Conditions Second Stage TRACKS
§ 1 Definitions
The following definitions apply to these General Terms and Conditions:
1.1 "Confidential Information" means all information relating to the business operations of the disclosing Party which is not in the public domain but known only to a limited group of persons and which the disclosing Party has a legitimate interest in keeping confidential, regardless of whether it is communicated to the receiving Party in written, electronic, embodied or oral form or otherwise made available (e.g. by granting electronic access) or made available for other reasons. Confidential Information includes in particular
- Economic information such as customer lists, price and financial data and sources of supply
- Know-how, technical information such as methods, procedures, formulae, techniques and inventions, software, in particular object and source code
- all other information that is recognisably marked as confidential by the disclosing Party for the receiving Party.
1.2 "Contractual Partner" refers to the respective User of the Marketing Intelligence Platform who concludes or has concluded a contract with Second Stage on the basis of these GTC for services provided by Second Stage.
1.3 "Entrepreneur" means a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, is acting in the exercise of their commercial or independent professional activity (Section 14 German Civil Code).
1.4 "GTC" means these General Terms and Conditions.
1.5 “Integration Code” means a Code module provided by Second Stage to the Contractual Partner, which the Contractual Partner integrates into their environment to enable the collection and analysis of the required data.
1.6 "Party" means Second Stage or the Contractual Partner, depending on the respective context. Second Stage and the Contractual Partner are also jointly referred to as "the Parties". A Party that discloses information to the other Party is referred to as the "disclosing Party".
1.7 "Platform" means the marketing intelligence Platform "SECOND STAGE TRACKS" (also referred to as "TRACKS" or "TRACKS Platform" for short) operated by Second Stage.
1.8 "Second Stage" refers to SECOND STAGE GmbH, Roedernstr. 5, 13053 Berlin, Germany.
1.9 Service Description” means the the functionality description of the Platform available at https://documentation.secondstage.io/tracks/overview/
1.10 “Text Form" refers to the form defined in Section 126b German Civil Code. A simple e-mail fulfils the Text Form requirement.
1.11 "TRACKS" refers to the web application that enables its Users to analyse and report on performance media campaigns and brand health, aggregating and evaluating data from various digital advertising platforms.
1.12 "Transfer Point" means the gateway at which the data centre in which the servers on which the TRACKS Platform is operated are connected to the public internet.
1.13 "User" is the respective User who uses the "SECOND STAGE TRACKS" marketing intelligence Platform from Second Stage.
§ 2 Scope
2.1 These General Terms and Conditions of Contract shall apply to contracts between Second Stage GmbH (hereinafter referred to as "Second Stage") and a User ("User") for the use of the marketing intelligence Platform "SECOND STAGE TRACKS” provided by Second Stage. The Second Stage TRACKS service is expressly intended for customers who are Entrepreneurs, legal entities under public law or special funds under public law and who use it for business purposes.
2.2 These General Terms and Conditions shall apply exclusively. Conflicting or deviating contractual terms and conditions of the User shall not be recognised unless Second Stage has expressly agreed to their validity. This shall also apply if Second Stage performs the service to the User without reservation in the knowledge of the User's contractual terms and conditions.
2.3 Individual agreements made with a User in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these GTC.
§ 3 Registration and User Account and Login Process
3.1 In order to be able to use the TRACKS marketing Platform from Second Stage, the User must register by confirming the General Terms and Conditions (GTC) and, if applicable, the data protection provisions.
3.2 Registration and login take place via a web application (URL) using the "Magic Link" procedure (see the following paragraphs).
3.3 The User enters his e-mail address on the registration page of the Platform and confirms the General Terms and Conditions (GTC). The User is then sent an e-mail with a unique link, the "Magic Link", to the e-mail address provided by the User.
3.4 The User clicks on the magic link in the e-mail and is logged directly into their User account on the Platform. A password is not required to create the User account.
3.5 Upon initial registration, the User's e-mail address is stored in the Second Stage TRACKS database.
3.6 Access to the Platform is maintained via cookies for a limited time typically 30 days and expires after this time. The User can then alternatively request a Magic Link again by entering his/her email address on the TRACKS Platform and a new Magic Link will be sent to this email address and will grant him/her access again.
3.7 Alternative with 2-factor authentication (2FA): Second Stage offers the option of 2FA as an additional security measure. It is up to the User to decide whether or not to activate this option. However, the activation of 2FA is recommended to ensure a higher security standard for the User account. The User can optionally activate 2FA.
3.8 If 2FA is activated, the User must also enter an authentication code after logging in with the Magic Link, which is generated via an authenticator app.
3.9 The 2FA is used for additional security of the User account. Without entering the 2FA code, the User cannot access their account if 2FA has been activated.
3.10 After registering and accessing the Platform, the User has the option of adding further Users to view their campaign dashboards. For this purpose, an invitation link is sent to the e-mail address of the additional User, which grants direct access to the dashboard selected by the first User. The first User is responsible for ensuring that they only invite authorised persons and for all activities that take place via this access.
3.11 The User is obliged to treat the Magic Link transmitted to him/her confidentially, to keep it secret and only to pass it on to those persons to whom he/she wishes to grant access to the TRACKS Platform as intended. In relation to Second Stage, the User is responsible for all actions carried out by persons to whom he has granted access to the Platform using this access. Should the User become aware that unauthorised third parties have gained access to their Magic Link, they are obliged to immediately request a new link. The User is also obliged to inform Second Stage immediately if there are indications that their access to the Platform has been or could be misused by unauthorised third parties.
§ 4 Demo version, Conclusion of Contract
4.1 The presentation of the services on the TRACKS web application does not in itself constitute a binding offer from Second Stage to the User, but is only intended as a so-called invitation to submit an offer (lat. "invitiatio ad offerendum"), similar to a non-binding illustration in a catalogue.
4.2 The sending of the Magic Link by Second Stage to the User's e-mail address constitutes an offer to the User to use the TRACKS Platform subject to these GTC. By clicking on the link and accessing the Platform for the first time, the User accepts this offer.
4.3 After registration, the User receives access to the TRACKS Platform and can view the reporting dashboard and previously purchased campaign dashboards within the demo version. No paid (“unentgeltlich”) contract is concluded at this stage and the User has the opportunity to familiarise themselves with the functions of the Platform free of charge.
4.4 If the User is interested in creating a new campaign dashboard, he/she fills out a query form with the details of his/her campaign (e.g. title of the game, required functional scope of the Platform). This represents an invitation to submit an offer to Second Stage and is not a binding acceptance.
4.5 Based on the data entered by the User, Second Stage creates a personalised, binding offer for paid use (“entgeltlich”), which is sent to the User by e-mail for acceptance.
4.6 The paid contract between the User and Second Stage is only concluded when the User expressly accepts the personalised offer. As a rule, the User accepts the personalised offer by commencing use on the basis of this offer.
§ 5 Subject matter of the Agreement and Services of Second Stage, Fulfilment of the Contract
5.1 Unless otherwise agreed, the details of the Services owed by Second Stage are set out in the Service Description valid at the time the respective Contract is concluded and in these General Terms and Conditions (GTC). The specific details of the Services depend on the campaign details entered by the User, on the basis of which a customised offer is created.
5.2 Second Stage provides the User with the web application TRACKS, which makes it possible to analyse and report on marketing analytics for computer and video games or other products and services. For this purpose, data from various digital advertising Platforms is aggregated and visualised in dashboards via the Google Looker Studio business intelligence Platform. These dashboards access data that is stored on Second Stage's servers for example in the Google Cloud.
5.3 In addition, TRACKS offers a solution for so-called attribution tracking, which enables the linking of advertising data with User interactions. In order to use this function, additional data may need to be saved in the Second Stage cloud. Depending on the individually agreed product selection, Second Stage requires the Contractual Partner/User to provide or grant access to the Contractual Partner's/User´s cloud server, media accounts, STEAM Account, etc. As an additional option, the contracting partner/User will receive an integration code from Second Stage when using attribution tracking. The exact functional scope of these and other services is determined by a customised offer based on the campaign details provided in the query form.
5.4 The performance of TRACKS is dependent on the availability and quality of the data provided by the User. TRACKS merely acts as the tool for aggregating and visualising the data and cannot guarantee the accuracy or completeness of the data provided at the request of the User. The User bears sole responsibility for the availability, completeness and quality of the data provided by him.
5.5 During the term of the Contract, the User shall have the non-exclusive right to use the TRACKS web application and the optionally provided Integration Code required for the agreed use within the scope and purpose of this Agreement. The User is obliged to delete the Integration Code and all copies of it after the end of the Contract.
5.6 The User's access to the internet is not part of Second Stage's services. The User shall bear sole responsibility for the functionality of their internet access, including the transmission paths from and to the Transfer Point.
5.7 The User is obliged to create the necessary system requirements for the use of the TRACKS Platform, which are within his sphere of responsibility. This includes in particular the provision of a stable internet connection with sufficient bandwidth and suitable end devices.
5.8 Second Stage is entitled to make changes to the scope of functions as part of the further development of the web application, provided that these changes do not result in any significant disadvantages for the User and are reasonable for the User. A renewed familiarisation of the User with any changed structures or User guidance does not constitute unreasonableness.
5.9 Second Stage is authorised to employ vicarious agents (“Erfüllungsgehilfen”) for the execution of an order or the provision of services.
5.10 Separable partial services shall be deemed to be owed independently of each other, insofar as this is reasonable for the User.
§ 6 Data backup and Data Deletion (“Datenlöschung”)
6.1 Data backup of the data processed on the TRACKS Platform is carried out by the cloud services used by Second Stage from other providers, e.g. such as Heroku or Google Cloud, etc.
6.2 Second Stage does not carry out its own data backups. The User is responsible for regularly making backup copies of the campaign and User data relevant to him, especially if they are important for legal or business purposes. The TRACKS Platform provides suitable export and download functions to facilitate data backup for the User.
6.3 After termination of the contractual relationship, Second Stage shall be entitled to delete all data stored on the Platform within a period of its discretion (keeping in mind data protection laws, tax laws etc. as the case may be).
§ 7 Availability of the TRACKS Platform, Costumer Service
7.1 Second Stage guarantees an availability of the TRACKS Platform of 99.00% on a monthly average, unless the Parties have agreed otherwise. However, this does not constitute a corresponding guarantee.
7.2 The Platform is deemed to be available when it is ready for use by the Contractual Partner at the transfer point and during the agreed maintenance windows (see following paragraph)
7.3 In order to maintain the quality and security of the training Platform, maintenance windows (shutdown periods) totalling a maximum of eight (8) hours per month have been agreed during which the TRACKS Platform is scheduled to be unavailable. During these maintenance windows, the Platform is considered available despite the shutdown. The planned maintenance windows will be announced by e-mail to the e-mail address provided by the User at least five days before the planned shutdown.
7.4 The measurement period for availability is the calendar month. Availability is calculated according to the following formula:
Availability [%] = MinActual / (MinMeasure - MinWait) * 100
In relation to the measurement period:
MinIst = number of minutes of actual availability of the TRACKS Platform
MinMess = the number of minutes of the measurement period
MinWart = the number of minutes of switch-off times during the agreed period.
Maintenance window
7.5 The availability of the Platform is automatically monitored and documented by Second Stage. The results of this monitoring shall serve as the basis for proving the degree of availability, whereby the Contractual Partner reserves the right to prove that the measurement results are incorrect.
7.6 The Contractual Partner is obliged to notify Second Stage immediately and as precisely as possible of any functional failures, disruptions or impairments to the availability of the Platform. If the Contractual Partner fails to do so, Section 536c German Civil Code shall apply accordingly.
7.7 Second Stage shall in no case be liable for disruptions to availability caused by the Contractual Partner, the telecommunications service provider, the access provider or the mobile phone provider of the Contractual Partner or by third parties otherwise attributable to the sphere of the Contractual Partner.
7.8 Second Stage provides a customer service for its Contractual Partners in accordance with the Service Description or individual offer.
§ 8 (Minimum) term “Mindestlaufzeit”, Cancellation, Data transfer and Deletion
8.1 The Contract for the use of the Platform is concluded for an indefinite period. The minimum contract term may be included in the individual Agreement made with each User. It is automatically extended until it is cancelled in accordance with these GTC.
8.2 Each Party may terminate the Agreement at any time, with one month notice period, effective to the end of the month (last calendar day of the month). The right to terminate for cause remains unaffected (see the following paragraph).
8.3 The right of the parties to terminate the Contract for good cause remains unaffected by the above provisions.
8.4 Cancellations must be made in Text Form (“Textform”).
8.5 At the end of the contractual relationship, Second Stage shall make the data stored in the Contractual Partner's User account available to the Contractual Partner for download in a common file format for a period of two (2) weeks. After this period has expired, Second Stage shall delete the Contractual Partner's User account, including the data contained therein.
§ 9 Remuneration, Invoicing and General Terms of Payment
9.1 The monthly fee agreed individually with the Contractual Partner shall be paid for the possibility of using the TRACKS Platform.
9.2 Unless otherwise agreed, the agreed remuneration is a monthly fixed price.
9.3 All prices are subject to the applicable statutory value added tax (“Umsatzsteuer”).
9.4 The monthly remuneration shall be invoiced to the Contractual Partner in advance at the beginning of each calendar month. For the first month, which may be a short month (“Rumpfmonat”), the monthly remuneration shall be invoiced pro rata temporis.
9.5 Invoices shall be issued at the start of the service period and sent to the Contractual Partner by e-mail from Second Stage. Payment must be made within fourteen (14) days of receipt.
9.6 In the case of a direct debit (“Lastschriftverfahren”), Second Stage shall inform the Contractual Partner of the debit (amount and due date) with a notice period of one day (pre-notification). If the due date falls on a non-banking day, the debit shall be made on the next banking day. In the case of recurring direct debits, a pre-notification will be sent before the first direct debit collection, stating the future due dates.
9.7 In the event of default in payment by the Contractual Partner, Second Stage may temporarily suspend the provision of its services until payment has been made in full, unless this would be contrary to good faith under the circumstances, in particular due to the relative insignificance of the outstanding payment. The Contractual Partner shall remain obliged to pay even during a corresponding suspension of services. Further claims and rights of Second Stage due to default of payment shall remain unaffected by this.
9.8 The Contractual Partner may only offset counterclaims based on material defects or defects of title of Second Stage's services against Second Stage's claims if the amount set off does not exceed the reduced value of the service concerned due to the defect or the expected costs of subsequent fulfilment or rectification of the defect. Otherwise, offsetting against Second Stage's claims shall only be permitted with undisputed or legally established counterclaims.
§ 10 Confidentiality and Data Protection
10.1 Second Stage and the Contractual Partner are obliged to treat all knowledge of confidential information of the other Party obtained within the framework of the contractual relationship and its fulfilment as confidential for an unlimited period of time, in particular even after termination of the cooperation, and to use it only for the purposes of implementing the respective contract.
10.2 The confidentiality obligation shall not apply to information that (i) was already in the public domain at the time of disclosure or becomes publicly known thereafter without any failure to comply with the foregoing provisions being a contributing cause, (ii) is expressly disclosed by one Party on a non-confidential basis, (iii) was already in the lawful possession of the other Party prior to disclosure, (iv ) is subsequently disclosed to the receiving Party by a third Party without breach of a confidentiality obligation or is independently developed by the receiving Party without use of the Confidential Information, (v ) is required to be disclosed by law, or (vi) is presented as evidence to a court or public authority for the assertion of or defence against legal claims. The burden of proof for the existence of one of the above exceptions shall be borne by the Party invoking it.
10.3 The parties undertake to comply with the relevant Data Protection regulations, in particular the GDPR (“DSGVO”), within the scope of the cooperation. The separate Second Stage privacy policy https://tracks.secondstage.io/pages/privacy shall apply.
§ 11 Warranty
11.1 Second Stage shall be obliged to rectify defects in the TRACKS Platform during the term of the Contract. A defect shall also be deemed to have been remedied if Second Stage shows the Contractual Partner a reasonable way of avoiding the effects of the defect.
11.2 The Contractual Partner's right to terminate the Contract for failure to grant use in accordance with Section 543 (2) sentence 1 no. 1 German Civil Code is excluded unless the establishment of contractual use is deemed to have failed. Failure to establish use in accordance with the contract shall be assumed at the earliest if Second Stage does not remedy a material defect within a period of four (4) weeks from receipt of the notice of defects or provides a corresponding workaround and the Contractual Partner has duly provided the cooperation services incumbent upon it in this context. The Contractual Partner is not entitled to terminate the Contract due to insignificant defects.
§ 12 Liability
12.1 Second Stage shall be liable in accordance with the statutory provisions for damages to the Contractual Partner caused by intentional or grossly negligent behaviour (“grob fahrlässiges Verhalten”) on the part of Second Stage or its vicarious agents (“Erfüllungsgehilfen”). The same shall apply to personal injury and damage under the Product Liability Act.
12.2 Furthermore, Second Stage's liability for claims for damages - regardless of the legal grounds - shall be limited in accordance with the following provisions, unless otherwise stipulated in a guarantee assumed by Second Stage:
Second Stage shall only be liable for damages caused by slight or simple negligence on the part of the Contractual Partner insofar as they are based on the breach of essential contractual obligations (“Kardinalspflichten” “cardinal duties”). Cardinal duties are those contractual obligations whose fulfilment is essential for the proper execution of the Contract and on whose compliance the Contractual Partner regularly relies and may rely. Insofar as Second Stage is liable for simple negligence, its liability shall be limited to the typically foreseeable damage. Any further liability of Second Stage for slight or simple negligence is excluded.
12.3 The provisions of the above paragraphs shall also apply accordingly to a limitation of Second Stage's obligation to pay compensation for futile expenses (Section 284 German Civil Code).
12.4 Second Stage's strict liability as lessor for defects existing at the time of conclusion of the Contract pursuant to Section 536a (1), 1st Alt. German Civil Code is excluded.
12.5 The above limitations of liability shall also apply in favour of Second Stage's vicarious agents (“Erfüllungsgehilfen”).
§ 13 Responsibility for Content, Data and Information from Users
13.1 Second Stage assumes no responsibility for data, information or content provided, uploaded or linked by the Contractual Partners within the scope of the service. In particular, Second Stage does not warrant that such data, information or content is correct, up-to-date or complete or that it is suitable or unsuitable for a particular purpose.
§ 14 Governing Law and Place of Performance
14.1 The contractual relationship(s) between the Contractual Partner and Second Stage and their implementation shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and the provisions of international private law.
14.2 If the Contractual Partner is a registered trader, a legal entity under public law or a special fund under public law or has no general place of performance in Germany, Berlin (Germany) is agreed as the place of performance for all disputes arising from or in connection with the contract concluded between the contractual parties.
§ 15 Miscellaneous
15.1 Agreements between Second Stage and the Contractual Partner and all amendments and additions to the contract must be made in writing, whereby, in deviation from Section 126 of the German Civil Code, an exchange of documents by fax or electronically as a scan is sufficient. The aforementioned formal requirements shall also apply to the amendment or cancellation of provisions of this clause.
15.2 All declarations by the contracting parties (e.g. orders, cancellations, notices of defects, etc.) must be made in Text Form (“Textform”) to be effective.
15.3 In the event that future orders are placed with Second Stage by a Contractual Partner who is an Entrepreneur by way of electronic business transactions, the special notification, information and other obligations arising from Section 312i (1) sentence 1 nos. 1 to 3 and sentence 2 German Civil Code are waived.
15.4 The Contractual Partner may only assign rights and claims arising from a contractual relationship with Second Stage to third parties with the prior written consent of Second Stage.
§ 16 Amendment of the GTC
16.1 Second Stage shall be entitled to amend these GTC in accordance with the following provisions. The right to amend the GTC shall only apply insofar as this does not result in a change to Second Stage's main performance obligations that is detrimental to the Contractual Partner.
16.2 The Contractual Partner shall be notified of amendments to these GTC in Text Form.
16.3 The Contractual Partner may object to such an amendment to the GTC. To do so, he/she must declare his/her objection to Second Stage in Text Form and within six (6) weeks of receipt of Second Stage's notification of the amendment to the GTC (hereinafter "amendments"). The deadline is only met if the objection is received by Second Stage within the deadline. If the Contractual Partner does not object in due form and time, the amendments shall be deemed approved and the amended GTC shall become part of the contract; Second Stage shall expressly refer to this and to the form and deadline for the objection in the notification of the amendment.
16.4 If the Contractual Partner objects to the changes in due form and time, the contract shall continue unchanged. In this case, however, Second Stage shall have the right to terminate the contract with a notice period of four (4) weeks from receipt of the objection to the Contractual Partner, provided that it is economically or technically impossible or unreasonable for Second Stage to adhere to the unchanged contract.
Date: 24th September 2024