The following general terms and conditions (GTC), in addition to the respective use agreement, govern the legal relationship between The ADEX GmbH, Torstrasse 19, 10119 Berlin, Germany (hereinafter: “provider”) and the customer (hereinafter: “customer”). In case of doubt, the provisions of the use agreement shall prevail. Terms of the customer are not part of the agreement, unless the provider agrees to their validity in writing.
1 – CONCLUSION OF THE AGREEMENT
An agreement for the use of ADEX technologies only comes into existence with the express acceptance of the respective offer of the customer to conclude a use agreement. If the provider clearly starts to provide the contractual performance for the customer it is equivalent to acceptance by the provider. In contrast, price information or other information provided by the provider regarding ADEX technologies does not constitute a binding offer to conclude a use agreement.
2 – SUBJECT OF THE AGREEMENT
(1) The subject matter of the agreement results from the use agreement. In case of doubt, the provider shall provide the customer with the respective ADEX technology by granting it for the duration of the agreement a non-exclusive and non-transferable, but possibly sublicensable right, to the customers of the customer (end customers), to use the respective system software, which runs on the internet servers of the provider.
(2) The functionality of this software as well as the scope of the other services of the provider also follows from the use agreement. In addition to the functionality agreed in the use agreement (minimum functionality), the provider offers the customer a variety of additional functions (additional functions) that complement and extend the minimum functionality of the system. A claim of the customer to the additional functions does not exist. In that regard, the provider is entitled to make changes at any time.
(3) Depending on the particular ADEX technology, the customer will have access to a web interface and/or an interface (API) of the system. Through the web interface, the customer can make the necessary settings to use the technology. It can automatically access the technology via the API. Upon request, the provider shall provide the customer with documentation on the interface. Any access data (e.g.: username and password), which the customer receives for access to the web interface and/or the interface from the provider, must keep secret by the customer and properly protected against being seen by third parties. Any action taken under this access data shall be deemed to have been initiated by the customer unless the customer has duly fulfilled its duty of confidentiality and protection.
3 – REMUNERATION
(1) The provider receives a fee from the customer in accordance with the use agreement. If no provision for remuneration has been made in this agreement, the usual remuneration shall be deemed agreed.
(2) In case of doubt, the provider shall invoice the remuneration on a calendar-month basis by invoicing the customer by e-mail or alternatively by post. The customer has to pay the respective invoice, unless otherwise agreed, within 14 days without deduction by SEPA transfer to the business account of the provider, whereby the time of crediting in the account of the provider is decisive. In case of late payment, the customer will be in default, without the need for a reminder.
(3) If the customer not only insignificantly defaults on payment of the remuneration, the provider is entitled to block the system access of the customer for the duration of the default of payment, without the customer being released from the obligation to pay for the period of the blocking.
(4) Objections to invoicing shall be made by the customer within a limitation period of six weeks in writing to the provider. The limitation period begins with the receipt of the respective invoice at the customer. If the customer does not object within the limitation period, the respective invoice is deemed approved by the customer. The provider shall again inform the customer in the respective invoice separately about this legal consequence.
(5) All prices are net in case of doubt, i.e. without VAT. For invoicing, all amounts are also taken into account without VAT (net). VAT will be added to the total, i.e. the outstanding amount (gross), as far as it is incurred.
4 – DURATION AND TERMINATION
(1) In case of doubt, the agreement is concluded for an indefinite period with a notice period of two weeks. If another period of notice has been agreed, each party may terminate the agreement with this period. If a term has been agreed for the agreement, the agreement can only be terminated at the end of the term, and insofar as a notice period has been agreed, termination is subject to this notice period or a notice period of two weeks if no such notice period is agreed. If such a term agreement is not terminated by a party in due time, it will be renewed for the same term each time (automatic agreement renewal). Termination requires the written form.
(2) If a trial period has been agreed in the use agreement, the agreement may be terminated by both parties in writing during this period, regardless of any term and notice period, at the end of the next working day.
(3) The right to terminate for good cause remains unaffected. Good cause exists, in particular, if insolvency proceedings have been instituted over the assets of a party or insolvency proceedings have not been initiated for lack of assets.
(4) At the end of the agreement, the provider shall block any access data of the customer and delete the customer data accumulated in the system. The supplier shall confirm the deletion in writing to the customer upon request. The customer is responsible for obtaining any backup of the data in good time before the end of the agreement. The provider, however, is only obligated to delete the data insofar as no contrary legal storage duties apply or the storage is done for other reasons (for example: invoice-relevant data).
5 – AVAILABILITY & WARRANTY
(1) The customer is aware that software cannot be created completely error-free. The provider owes the usual industry care in this regard. The customer is further aware that malfunctions in system operation are not entirely avoidable. Whether the non-availability of the system or any part of it constitutes a defect must be determined in accordance with paragraphs 2 and 3.
(2) The following disturbance classes apply: 1. Disturbance preventing operations, i.e. an economically significant core functionality is not available, a workaround is not available; 2. Disturbance hindering operations, i.e. there is an error of class 1 with a workaround, or the minimum functionality is not available; 3. Other disturbance, i.e., a disturbance of class 1 or 2 does not apply.
(3) Insofar as permanent availability must be ensured according to the type of functionality, the following applies: The provider keeps the system available regardless of the day and time (24/7). Availability is determined by the output of the router connecting the data centre used by the provider to the internet (transfer point). In the case of disturbances of class 1, the provider guarantees an availability of 99% on a monthly average; in the case of disturbances of class 2, of 97%. However, in the case of disturbances of class 2, availability is only considered reduced if the customer has reported the disturbance to the provider (disturbance report). For class 3, there is no guarantee of availability, but the provider shall correct such disturbances in a timely manner. The guarantee of availability excludes disturbances within the internet as well as disturbances whose cause is beyond the control of the provider (e.g. force majeure). The provider is entitled to access the data of the customer, as far as this is necessary for troubleshooting. The customer shall assist the provider with the troubleshooting, as far as this is reasonable.
(4) Any claims for defects expire one year after their occurrence. Otherwise, the statutory provisions apply. For liability for damages due to defects, the limitation of liability according to § 6 additionally applies.
6 – LIMITATION OF LIABILITY
The provider is liable for intent and gross negligence, for the injury of life, body and health, according to the provisions of the Product Liability Act (ProdHG), according to the provisions of § 44a Telecommunications Act (TKG) and to the extent of an assurance made by the provider or an assumed warranty. In case of slightly negligent violation of a material contractual obligation, the provider has no liability. Material contractual obligations are those whose fulfilment enables the proper execution of the agreement in the first place and on whose compliance the customer may regularly rely. A further liability of the provider does not exist. In particular, there is no fault-free liability of the provider for initial defects. This limitation of liability also applies to the personal liability of the legal representatives, employees and vicarious agents of the provider.
7 – VIOLATIONS
(1) The customer shall use the ADEX technologies in accordance with the statutory provisions. In particular it shall: 1. Observe the rules for the protection of the youth; 2. Not distribute content that violates the morals or rights of third parties, in particular trademark, name or copyright rights; 3. Not spread viruses, trojan horses, junk mail or spam; 4. Not carry out any application that may result in a malfunction or change in the physical or logical structure of the system; 5. Observe the relevant data protection regulations (§ 8).
(2) The customer indemnifies the provider from all claims that third parties make against the provider as a result of a non-contractual or unlawful use of the system by the customer. In particular, this obligation also covers exemption from the costs of legal action and defence, provided that they are not inappropriate. If a claim is made against the provider by a third party, whereby the customer would be obliged to indemnify the provider, the following applies: The provider shall inform the customer promptly. The parties shall agree on the further course of action together. If the customer recognises its obligation to indemnification, it may determine the further course of action alone. Upon request, however, it must provide the provider in advance with adequate assurances.
(3) The customer shall not do anything that may influence data collection, in particular the collection of usage and delivery data. The customer shall not make any changes to the tags/snippets specified by the system without the express prior written consent of the provider.
(1) The parties shall observe the relevant data protection regulations, in particular those of the GDPR, the Federal Data Protection Act (BDSG) and the Telemedia Act (TMG). The parties shall commit their employees to the observance of data secrecy.
(2) The provider shall meet the technical and organisational requirements for proper data processing. In particular, it shall protect the systems subject to its access against unauthorised knowledge, storage, modification and other unauthorised access or attacks of any kind. To this end, it shall take the necessary measures to the extent necessary in accordance with recognised technical rules in particular to protect against viruses and other defective programs or program routines, and it shall take other measures to protect its equipment, in particular to protect against burglary. It shall impose obligations on its contractors when using systems that are not subject to its access. The systems shall be operated in Germany, but in any case the European Union.
(3) In addition, the provider shall make regular backups as required. For the loss of customer data, however, the provider is liable only insofar as such a loss could not have been avoided by appropriate measures of data security on the part of the customer. In the case of data loss, the customer shall provide the provider its backup on request. For liability for compensation due to loss of data, the limitation of liability according to § 6 applies in addition.
(4) Insofar as the provider collects, processes or uses personal data on behalf of the customer, the collection, processing and use of this data shall only take place in accordance with the customer’s instructions and the concluded commissioned processing agreement.
9 – CONFIDENTIALITY
The parties are obliged to keep confidential all business and trade secrets as well as operational matters of a confidential nature of the other party, which are expressly designated as such or are obviously identifiable as such. The obligation of confidentiality extends in particular to the content of the agreement, including any appendices. On the other hand, the obligation to maintain confidentiality does not extend to information already known to the other party or lawfully made public by a third party, which has already been publicly known or becomes public knowledge without breach of this confidentiality obligation, or whose disclosure is required by law, court or government. Employees, vicarious agents, consultants or affiliates within the meaning of § 15 of the German Stock Corporation Act (AktG) shall only disclose confidential information of the other party to the extent necessary. However, these persons are obliged to impose a confidentiality obligation on such parties to the extent that such an obligation does not already exist by law.
10 – FINAL PROVISIONS
(1) Insofar as, according to the use agreement, the system can (also) be used by the customers of the customer (end customer), the use by the end customer is deemed to have been made by the customer. In particular, the customer has to remunerate the use of the system by its customers as if it had used the system itself. It is incumbent on the customer in its contracts to ensure that it has no further obligations to the provider than it has rights towards the end customer. It is also up to the customer to ensure that it is not liable to its customers any further than it can indemnify the supplier.
(2) The agreement remains binding even in the case of legal ineffectiveness of individual points in its remaining parts. In place of the ineffective points, the statutory provisions apply if available. To the extent that this would constitute an unreasonable hardship for one of the contracting parties, however, the agreement as a whole becomes ineffective.
(3) Additional agreements, changes and additions to the agreement must be made in writing in order to be effective, which also applies to the cancellation of this written-form requirement. As far as the agreement provides for the written form, however, the transmission of a signed declaration by fax or as a scan by e-mail is sufficient; upon request, the original of the declaration must be submitted immediately.
(4) If the customer is a merchant, a legal entity under public law or a special fund under public law, Berlin shall be the exclusive place of jurisdiction for all claims arising out of or on the basis of the agreement. The same applies to persons who have no general place of jurisdiction in Germany or persons who have relocated their domicile or usual place of residence outside of Germany after conclusion of the agreement or whose domicile or habitual residence is not known at the time the claim is filed. The law of the Federal Republic of Germany applies to the exclusion of the UN sales law.
(5) If the provider provides the customer with the use agreement and/or these terms and conditions (also) in a language other than German, the following applies: The other language version has been created to the best of its knowledge and belief. It is, however, only for informational purposes. In case of doubt, the provisions of the German version shall prevail.