GENERAL TERMS AND CONDITIONS
of Web Inclusion GmbH for "Eye-Able"

EYE-ABLE® AGB

TABLE OF CONTENTS

 

  1. Definitions
  2. Scope of application, order of precedence of contractual documents
  3. Offer description, commissioning
  4. Registration, provision, operation and support of the software services
  5. Place and time of performance
  6. Intellectual property, rights of use
  7. Remuneration and billing modalities
  8. Cooperation of the customer
  9. License control, relicensing
  10. Claiming of property rights by third parties
  11. Warranty
  12. Liability
  13. Confidentiality and Privacy Policy
  14. Contract term and consequences of contract termination
  15. Final provisions

 

 

  1. Definitions

1.1 "GTC" are defined in section 2.1.

1.2 "Changes" are defined in section 4.7.

1.3 "Analyses" are defined in section 6.5.

1.4 "Documentation of the Software Services" means the latest documentation provided by Web Inclusion in writing or electronically, including the service certificate, on the features, functions and use of the Software Services and/or the Hosted Environment.

1.5 "Receiving Party" is defined in clause 13.1.2.

1.6 "New rights" are defined in section 6.1.1.

1.7 "Action" means both an act and an omission.

1.8 "Force majeure" is defined in clause 12.3.

1.9 "Hybrid" means the mixed operation of software in which some parts are hosted on-premise and other parts are offered as SaaS.

1.10. "Customer" is defined in the contract form.

1.11. "Disclosing Party" is defined in clause 13.1.2.

1.12. "On-Premise" / "on-premise" means the operation of software on the infrastructure provided by the customer.

1.13. "Parties" means the Customer and Web Inclusion.

1.14. "Representative" is defined in section 13.1.5.

1.15. "SaaS" means Software as a Service, i.e. the provision of software on the infrastructure provided by the service provider.

1.16. "Services" are defined in section 2.1.

1.17. "Software Services" are defined in Section 2.1.

1.18. "Contract" is defined in section 2.3.

1.19. "Contract form" is defined in section 3.4.

1.20. "Confidential information" is defined in section 13.1.2.

1.21. "Pre-existing components" are defined in section 7.1.2.

1.22. "Workshops" are defined in section 2.1.

 

  1. Scope of application, order of precedence of contractual documents

2.1 These General Terms and Conditions ("GTC") apply to all consulting, training, testing, configuration, implementation, provision, operation, hosting and support services of Web Inclusion GmbH, Gartenstraße 12c, 97276 Margetshöchheim, Germany ("Web Inclusion") in relation to the solution "Eye-Able" ("Service"). This includes software solution(s) that are offered as an on-premise solution, as an internet-based SaaS solution or as a hybrid solution ("Software Services") as well as training courses that are offered as webinars or in person ("Workshops").

2.2 General terms and conditions of the customer do not apply in connection with the provision of services by Web Inclusion, even if Web Inclusion does not expressly object to them. In particular, general terms and conditions do not become part of the contract even if Web Inclusion begins to provide the service without objecting to any general terms and conditions referred to by the customer.

2.3 The following order of precedence shall apply to the individual contractual documents (together the "Contract"):

a) the contract form;

b) the performance certificate;

c) the Service Level Agreement the contract for the commissioned processing of personal data (if agreed); and

d) these GTC.

In the event of contradictions or discrepancies, the documents listed first in the order of precedence take precedence over those listed next in the order of precedence. In the case of documents listed at the same level, the most recent document takes precedence over the older document.

 

  1. Offer description, commissioning

3.1 Web Inclusion offers the software services described in the contract form and service certificate in the agreed operating form (SaaS, on-premise or hybrid). If the form of operation is not specified in the contract form or service certificate, the software services are provided as SaaS.

3.2 Web Inclusion offers the workshops agreed in the contract form as services.

3.3 In addition to the provision of software services in the agreed operating form, Web Inclusion shall only be liable for additional services if they have been expressly agreed. Such additional services shall be provided as services, unless expressly agreed otherwise.

3.4 The nature and functionality of the services to be provided by Web Inclusion are set out in Web Inclusion's signed offer or any other Web Inclusion offer agreed by the parties ("contract form") and the documents referred to in the contract form, including the service certificate, the service level agreement and these GTC. Web Inclusion does not owe any services or performance features that are not regulated.

3.5 The commissioning of the provision of the software services in the agreed operating form, the workshops and the other services shall take place via the contract form.

 

  1. Registration, provision, operation and support of the software services

4.1 The software services are provided as soon as Web Inclusion has provided the customer with web-based access to the software services and has assigned the licenses for the booked software services in the user account.

4.2 Installation services and implementation services are only provided by Web Inclusion to the extent that they are expressly agreed in the contract form or service certificate (applies primarily to on-premise and hybrid).

4.3 New versions of the software services (e.g. updates, patches, hotfixes) shall be made available to the customer for download, provided that the software services are operated on infrastructure provided by the customer (applies to on-premise and hybrid).

4.4 Software services that Web Inclusion provides to the customer free of charge (e.g. (beta) versions provided free of charge) may be discontinued at any time.

4.5 The support times, the average availability of the software services, insofar as they are hosted by Web Inclusion (applies to SaaS and Hybrid), and the other service levels are regulated in the agreed Service Level Agreement.

4.6 System notifications and information from Web Inclusion relating to the operation, hosting or support of the Software Services by Web Inclusion may also be made available within the Software Services as well as transmitted to the customer in electronic form.

4.7 Web Inclusion is entitled to further develop, restrict or reduce the functionalities of the software services at any time ("changes"). Web Inclusion shall inform the customer of any Changes with reasonable notice. Changes will be communicated to the customer either by e-mail, within the software services or by any other means of communication chosen by Web Inclusion. If the change means that the customer cannot use the software services for the contractually agreed or assumed purposes, or can only use them with severe restrictions, the customer has a special right of termination. A restriction is deemed to be severe if the software services are no longer suitable for the customer's purposes, which have become a recognizable contractual basis for Web Inclusion. The customer must exercise the special right of termination within one (1) month of becoming aware of the planned change by written declaration or e-mail to Web Inclusion. In this case, the contractual relationship shall end on the Tag date on which the change is implemented, but at the earliest upon receipt of the notice of termination by Web Inclusion. The special termination shall not take effect if Web Inclusion refrains from implementing the change to the software services.

4.8 Web Inclusion reserves the right to block the software services for further use by the customer following a warning, unless such a warning is dispensable, if the customer

a) violates the contract or applicable law and/or

b) has deliberately provided false information in the application and/or

c) infringes the rights of third parties and/or

d) misuses the services of Web Inclusion and/or

e) if there is good cause in accordance with section 14.3.

 

  1. Place and time of performance

5.1 Insofar as the software services are operated on infrastructure provided by Web Inclusion (applies to SaaS and hybrid), the place of performance for the provision of the software services is the location of the servers on which the software services are operated. Otherwise, Web Inclusion shall provide the contractual services at the registered office of Web Inclusion, unless expressly agreed otherwise.

5.2 If deadlines for implementation or completion are agreed, these deadlines are only binding for Web Inclusion if they are expressly designated as binding in writing. Otherwise, the deadlines shall serve as planning parameters for Web Inclusion.

 

  1. Intellectual property, rights of use

6.1 Material property

6.1.1 Web Inclusion remains the owner of all intellectual property rights to the software services, workshop documents and the results of other services. All intellectual property rights associated therewith or embodied therein or resulting therefrom ("New Rights") are the exclusive property of Web Inclusion. This also applies if such New Rights are based on suggestions, specifications, feedback, requirements, ideas, contributions, comments or other input from the customer, users or third parties. The new rights do not include customer data that is processed via the software services. Unless otherwise agreed, all rights to and in relation to the aforementioned customer data are the exclusive property of the customer in relation to Web Inclusion.

6.1.2 Under no circumstances shall the customer receive exclusive rights of use to pre-existing components. "Pre-existing components" means, in addition to the software services, all components of software developments or other work results that Web Inclusion or a third party has developed prior to and/or independently of the contract. Web Inclusion or the third party shall remain the sole material owner of the pre-existing components.

6.2 License for the Software Services

6.2.1 Web Inclusion grants the customer the non-exclusive right to use the software services and associated developments of Web Inclusion for its own business purposes for the duration of the contract. Further details can be found in the agreed contract form and service certificate. The customer must comply with the agreed scope of the license, which may provide for a limited use of the license with regard to the users entitled to use and/or areas of application of the software services. The right of use shall arise upon payment of the first fee due.

6.2.2 The software services may only be reproduced to the extent necessary for the agreed use. All other rights, in particular the right to distribute the software services, including renting, editing and making them publicly available, shall remain exclusively with Web Inclusion.

6.2.3 Decompilation may only take place in the cases required by law in accordance with Section 69e of the German Copyright Act (UrhG) or comparable applicable national regulations. If third parties are involved in the decompilation, the customer must provide Web Inclusion with a written declaration from the third party prior to their use, in which the third party undertakes directly to Web Inclusion to comply with the provisions of this section 6.2.

6.2.4 In the event that the agreed scope of the license is exceeded, Web Inclusion is entitled to demand additional remuneration in accordance with the provisions of the contract form. If no remuneration has been agreed in the respective contract form for cases in which the scope of the license granted in the contract form is exceeded, Web Inclusion may demand additional remuneration, which shall be based on the license fee agreed between the parties in relation to the agreed scope of the license. Any further claims for damages shall remain unaffected.

6.2.5 Furthermore, the customer is not permitted to

a) to copy, translate, disassemble, decompile, reverse engineer or otherwise modify software services in whole or in part or to create derivative works thereof; whereby the documentation of the software services may be copied for internal use to the extent necessary;

b) to use software services in a manner that violates applicable law, in particular the transmission of information and data that is unlawful or infringes third-party property rights;

c) jeopardize or circumvent the operation or security of the Software Services.

6.2.6 The customer shall be liable for the actions of users to whom he has provided access to software services as for his own actions.

6.3 Workshop documents

6.3.1 Upon full payment of the remuneration owed, the customer shall receive a non-transferable, simple right to use the workshop documents for its own internal purposes, unlimited in terms of space and time.

6.3.2 Ownership of the copies of materials made by Web Inclusion for the customer for workshop purposes shall pass to the customer upon full payment of the remuneration owed.

6.4 Results of other services

For other results of Web Inclusion Services, the customer receives the simple and permanent right to use these results for its own business purposes.

6.5 Analysis data

Under the conditions set out in this section, Web Inclusion may create anonymized analyses with aggregated data for which (partial) customer data and information resulting from the use of the software services by the customer and the users ("analyses") are used. The data is anonymized and aggregated for the Analyses so that it cannot be traced back to individual companies or natural persons. The analysis data is used for product improvements, resource improvements, support improvements, product performance improvements, security and data integrity checks, benchmarking and the creation of new products. The analyses and the anonymization process are carried out in accordance with the provisions of the General Data Protection Regulation.

 

  1. Remuneration and billing modalities

7.1 License fees

7.1.1 Current fees are invoiced annually in advance, unless otherwise agreed.

7.1.2 If a service begins or ends within a billing period, the relevant billing period shall be calculated pro rata.

7.1.3 Services that are remunerated on a time and material basis shall be remunerated monthly in arrears, unless otherwise agreed.

7.1.4 Web Inclusion is entitled to adjust the current fees and other remuneration rates in compliance with the following principles:

Web Inclusion may change remuneration rates to an appropriate extent with two (2) months' notice in writing or by e-mail to the customer in order to compensate for cost increases and functional enhancements.

a) In case of doubt, the adjustment of the remuneration rates is appropriate if the currently agreed remuneration rates are not increased by more than 6%.

b) If the adjustment is not appropriate, the customer shall have the right to object. If the customer does not exercise the right of objection in writing within four (4) weeks of receipt of the declaration of adjustment, the new remuneration rates shall be deemed to have been agreed. If the customer exercises the right of objection in due time, Web Inclusion shall have the option of terminating the contract within four (4) weeks of receipt of the objection.

7.2 Remuneration for workshops and other services

7.2.1 If additional services are commissioned, invoicing shall generally be made pro rata in advance and pro rata after the service has been provided, unless the parties agree otherwise. In the case of services that are invoiced on a time and material basis, invoicing shall take place monthly in arrears.

7.2.2 In case of doubt, prices quoted are estimates unless fixed prices have been expressly agreed. Fixed prices are only binding insofar as the assumptions agreed between the parties are adhered to.

7.2.3 Web Inclusion shall also be entitled to reimbursement of the necessary and proven expenses incurred for the provision of the workshops and other services, including travel expenses. The provision of workshop documents shall not be remunerated separately, unless otherwise agreed.

7.3 Billing modalities

7.3.1 All prices quoted by Web Inclusion or listed in the contract are stated without VAT. If VAT is payable, the statutory VAT applicable at the time of delivery will be added to the net price shown.

7.3.2 All remuneration shall be due for payment within fourteen (14) days of the invoice date. After expiry of the payment period, the customer shall be in default.

7.3.3 Web Inclusion shall, at its own discretion, provide the customer with the invoice by post or send the invoices to the customer electronically (e.g. in PDF format via e-mail). The customer agrees to electronic invoicing.

7.3.4 The customer may only offset undisputed or legally established claims and may only base a right of retention on undisputed or legally established claims.

7.3.5 The customer shall bear all taxes, fees, duties and customs duties incurred in connection with the provision of the services, including withholding tax. The customer shall indemnify Web Inclusion against all claims by third parties, including the tax authorities, in relation to the taxes, fees, levies and duties referred to in sentence 1. If Web Inclusion is required by law to deduct taxes, fees, levies or duties from the remuneration received, the customer is obliged to reimburse Web Inclusion the corresponding amount.

 

  1. Cooperation of the customer

8.1 The customer's general obligations to cooperate are listed below. Further obligations of the customer to cooperate may arise from the contract form and individual agreements between Web Inclusion and the customer.

8.2 The customer shall cooperate in the fulfillment of the contractual obligations to the extent necessary and free of charge, for example by providing employees, IT systems and telecommunications equipment for any necessary installation. The customer shall provide Web Inclusion with all information, data, content and documents necessary for the provision of the services, which Web Inclusion requires for the execution of the contract.

8.3 The customer must inform himself and keep himself informed about the essential functional features of the software services as well as their technical requirements (e.g. with regard to hardware requirements, operating systems, supported browser versions, interfaces).

8.4 The customer is responsible for ensuring that the customer's IT systems meet the technical requirements and are up to date. Web Inclusion accepts no responsibility for the correct display and functioning of the software services if the user uses an Internet browser that is not supported by the software services or is not up to date.

8.5 The customer is solely responsible for its IT infrastructure. In particular for its installation and operation. The customer shall bear all expenses required for the installation and operation of its IT infrastructure.

8.6 The customer must install new software versions provided by Web Inclusion without delay (applies to on-premise and hybrid).

8.7 The Customer shall thoroughly test the Software Services and new software versions of the Software Services to ensure that they are free of faults before commencing their productive use. The customer shall take appropriate precautions in the event that the software services do not work or do not work properly (e.g. through data backup, fault diagnosis, regular review of the results). Unless expressly agreed otherwise in writing, all persons employed by Web Inclusion in the course of providing the service can assume that all data with which they may come into contact is secured.

8.8 The customer bears the risk that the software services as well as the other services meet its requirements and can be used for its commercial purposes. The customer is solely responsible for ensuring that Web Inclusion's services comply with the legal and official regulations applicable to the customer and its internal compliance regulations.

8.9 If the customer uses software that is not provided by Web Inclusion, the customer shall ensure that it has all rights of use to this software, which it uses in connection with the services of Web Inclusion.

8.10. The customer must treat his access data to his user account confidentially and may not make it accessible to third parties. The customer is responsible for the actions carried out under a user account in connection with the password of the respective user, unless the customer can prove that the user was only able to access the customer's access data due to a breach of contract by Web Inclusion. The customer is responsible to Web Inclusion for the user's actions.

8.11. The customer shall take appropriate precautions in the event that the software services do not function or do not function properly. In this context, the customer shall regularly back up data and check the results. The Customer shall be solely responsible for the regular and complete backup of its business-relevant data and documents.

8.12. The customer shall be responsible for ensuring that the information and documents posted by him in the software services are correct and free of any malware such as viruses, worms, Trojans, etc. The customer shall be liable for any damage caused by incorrect information and documents. The customer is liable for any damage caused by incorrect information and documents. The customer is responsible for ensuring that the information and documents are posted in accordance with the applicable legal provisions.

8.13. If files are imported into the Software Services, the Customer must ensure that the file format, file name and file size are supported by the Software Services. Web Inclusion is not responsible for the success of the import of the respective file.

8.14. The customer shall be obliged to provide all materials and cooperation required for the execution of the order in good time, but at the latest when requested to do so by Web Inclusion.

8.15. If the customer does not or does not properly comply with the required obligations to cooperate, Web Inclusion's obligation to provide services shall lapse to the respective extent and for the respective period in which the provision of services by Web Inclusion is dependent on the prior fulfillment of the customer's obligations to cooperate. Web Inclusion is entitled to demand compensation for any additional expenses incurred due to a lack of or delay in cooperation.

 

  1. License control, relicensing

9.1 If the customer discovers that not enough licenses have been purchased, the customer is obliged to inform Web Inclusion of this. The customer is then obliged either to ensure that the software services are used from then on under the agreed license conditions, or to acquire the necessary number of additional licenses by means of a separate contract.

9.2 Web Inclusion is entitled to check the use of the software services at reasonable intervals by means of measurements. The measurement can be carried out either by Web Inclusion or by a third party commissioned by Web Inclusion. Web Inclusion will take appropriate account of the customer's confidentiality interests.

9.3 In principle, the measurement is carried out by means of self-disclosure by the customer using the measurement tools provided by Web Inclusion (if available). If the self-disclosure is refused or does not provide meaningful results or if there are indications of an infringement of rights by the customer, Web Inclusion may also carry out a measurement on site at the customer's premises. The customer must support Web Inclusion to a reasonable extent during the survey, in particular by granting access to the IT systems to the extent necessary.

9.4 Web Inclusion's own measurement costs are borne by Web Inclusion if the customer is sufficiently licensed. If the customer is not sufficiently licensed, the customer shall bear the reasonable costs incurred by Web Inclusion as a result of the measurement.

 

  1. Claiming of property rights by third parties

10.1 If a third party claims that the use of the software services infringes third-party property rights, the customer must inform Web Inclusion immediately and comprehensively in writing. Should the customer discontinue the use of the software services in order to minimize damages or for other reasons, he must inform the third party that the discontinuation of use does not constitute an acknowledgement of the alleged infringement of property rights.

10.2 The parties shall support each other to the best of their ability in defending their rights against the third party and in defending against the alleged infringement of property rights or in reaching a commercially reasonable settlement

 

  1. Warranty

11.1 Unless expressly agreed otherwise in writing, service contract law shall apply to the provision of services (in particular development, customizing and implementation services, consulting, training and data export services). If a service is not provided in accordance with the contract and Web Inclusion is responsible for this, Web Inclusion is obliged to provide the service in accordance with the contract within a reasonable period of time at no additional cost to the customer. This requires a written complaint from the customer.

11.2 All information on the service does not constitute a guarantee for the quality of the service, unless a guarantee has been expressly agreed in writing. A specific quality of the service cannot be derived from advertising materials or public statements if their specific content has not been expressly confirmed in writing by Web Inclusion.

11.3 In deviation from the aforementioned clause 11.1, the following warranty provisions shall apply to the Software Services:

11.3.1 Faults must be reported in text form by means of a comprehensible description of the faulty functioning, proven as far as possible by recordings (e.g. screenshots) or other documents illustrating the defects. The notification of defects must enable the reproduction of the defect. The customer shall name a meaningful contact person for the fault. This shall not affect the customer's statutory obligations to inspect and give notice of defects.

11.3.2 Web InclusionWeb Inclusion does not guarantee the correct display and functioning of the software services if the customer uses a web browser that Web Inclusion does not support or that is not up to date.

11.3.3 A material defect shall only exist if the Software Services deviate in significant parts from the documentation of the Software Services or the contractually agreed quality.

11.3.4 In the event of a material defect, Web Inclusion is entitled to rectify the defect by providing a new version or an update as part of Web Inclusion's version, update and upgrade planning. Web Inclusion may also remedy the defect by showing the customer reasonable ways of avoiding the effects of the defect.

11.3.5 In the event of defects of title, Web Inclusion shall, at its own discretion, either (i) provide the customer with the right to use the service as agreed, or (ii) modify the service in such a way that the allegation of infringement is invalidated, but the customer's contractual use is not unreasonably impaired as a result.

11.3.6 There is no right to self-remedy, in particular pursuant to Section 536a (2) BGB.

11.3.7 The applicable response and remedy periods are set out in the agreed Service Level Agreement.

11.3.8 The warranty is excluded if the faults are due to the fact that

a) the customer or the users authorized by the customer have used the software services improperly, whereby improper use exists in particular if the service is not used in accordance with any existing documentation of the software services;

b) the customer has not cooperated or has not cooperated in good time.

11.3.9 The warranty for defects in free services (e.g. free (beta) versions of software services) is limited to cases where Web Inclusion fraudulently conceals a defect from the customer. Otherwise, the customer has no claims to warranty for defects for free services.

11.3.10. If Web Inclusion provides troubleshooting or fault rectification services without being obliged to do so, Web Inclusion may demand a reasonable amount of time and effort-related remuneration. This applies in particular if a reported material defect cannot be reproduced or if the warranty is excluded in accordance with section 11.3.8 or if it subsequently transpires that there was no defect.

11.4 The customer's warranty claims shall expire within one year. In this case, the limitation period shall commence upon delivery of the defective object of performance. In contrast, the statutory limitation period shall apply if the defect was caused intentionally or by gross negligence, if a defect caused by simple negligence has resulted in injury to life, limb or health or if a guarantee was given for the quality of the contractual service.

11.5 Liability for damages and futile expenses shall be governed exclusively by Section 12.

 

  1. Liability

12.1 Customer liability

The customer shall be liable for intent and negligence. The customer shall be liable for the conduct of its employees, vicarious agents, bodies, users and representatives in the same way as for its own conduct.

12.2 Liability of Web Inclusion

12.2.1 Web Inclusion shall be liable without limitation for intent and gross negligence. In all other respects, the limitations set out in sections 12.2.2 to 12.2.7 apply.

 

12.2.2 Web InclusionWeb Inclusion is liable for the negligent breach of obligations whose fulfillment is essential for the proper execution of the contract, whose breach jeopardizes the achievement of the purpose of the contract and on whose compliance the customer may regularly rely. In the latter case, however, Web Inclusion shall only be liable for foreseeable damage typical of the contract. Web Inclusion is not liable for the negligent breach of obligations other than those mentioned in the preceding sentences.

12.2.3 Liability for damages and reimbursement of futile expenses shall be limited to the contract value of one contract year or EUR 10,000.00, whichever is higher, per case of infringement. However, if the term of the contract is less than one year, liability shall be limited to the remuneration paid by the customer, unless the remuneration paid is higher than the liability sum expressly quantified above. In the event of several cases of infringement in one contract year, Web Inclusion's liability shall be limited to twice the contract value of one contract year or, if the contract term is less than one year, to twice the remuneration paid or to EUR 20,000.00, whichever is higher.

12.2.4 Web Inclusion will not compensate for loss of profit. In the event of data loss, Web Inclusion will only reimburse the costs of recovery up to the amount that would have been incurred if the data had been properly and regularly backed up.

12.2.5 Strict liability for defects already existing at the time of conclusion of the contract pursuant to Section 536a (1) Alt. 1 BGB is excluded.

12.2.6 Insofar as liability is excluded or limited in accordance with this section, this exclusion or limitation also applies to the personal liability of Web Inclusion's employees, vicarious agents and bodies and all subcontractors of Web Inclusion.

12.2.7 The exclusions of liability under this section 12.2 shall not apply in the event of injury to life, limb or health or if Web Inclusion has assumed a guarantee. Liability under the Product Liability Act remains unaffected.

12.3 Force majeure

12.3.1 Neither party shall be liable to the other party for any failure or delay in its performance under the Contract due to Force Majeure. "Force majeure" means all circumstances beyond the reasonable control of a party, in particular war, terrorist attacks, natural disasters, pandemics (in particular new mutations of COVID-19 ), accidents, industrial action; acts of third parties or official, regulatory and/or judicial measures, insofar as these are not due to the fault of the party whose performance is suspended or delayed.

12.3.2 The circumstances existing at the time of signing the contract due to the corona pandemic shall not be deemed to be an event of force majeure within the meaning of this clause 12.3. in the event of the tightening of measures to combat the corona pandemic after conclusion of the contract, the parties undertake to keep the resulting impairments to the provision of services as low as possible. The respective party shall only be released from the fulfillment of its obligations due to the tightening of measures in connection with the corona pandemic to the extent that the provision of services is objectively impaired or impossible.

12.4 Statute of limitations

In the event of liability for intent, gross negligence, personal injury or under the Product Liability Act, the statutory limitation periods shall apply. Otherwise, a limitation period of one year shall apply to all claims for damages or compensation for futile expenses of the claimant in the case of contractual and non-contractual liability. The limitation period begins at the point in time at which the claimant is aware of the breach of duty by the other party or at least must have been aware of it (negligent ignorance). However, it shall commence at the latest five (5) years after the claim arises.

 

  1. Confidentiality and Privacy Policy

13.1 Protection of confidential information

13.1.1 The receiving party may only use confidential information of the disclosing party for the fulfillment of contractual obligations or - to the extent necessary for this - for the use of contractual services.

13.1.2 "Confidential Information" means information referred to in the second sentence above which is disclosed by one Party ("Disclosing Party") to the other Party ("Receiving Party") or which otherwise comes to the knowledge of the Receiving Party in the course of the Project, whether disclosed directly or indirectly in writing, orally or through the viewing of items before or after the signing of the Contract and whether or not it is the subject of Intellectual Property. Confidential Information includes (i) prices and terms of this Agreement, marketing strategies, financial information or projections, sales estimates and business plans, (ii) plans for products or services, (iii) inventions, new designs, processes, formulas or technologies, (iv) work in process, source code, (v) any other information designated as confidential or obviously recognizable as confidential information of the disclosing party.

13.1.3. However, Confidential Information does not include information that the receiving party can demonstrate (i) was publicly known and generally available prior to the time of disclosure by the disclosing party, (ii) becomes publicly known and generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party (iii) was already in the possession of the receiving party at the time of disclosure by the disclosing party, (iv) was obtained by the receiving party from a third party without breach of a confidentiality obligation, or (v) was independently developed by the receiving party without reference to or use of the disclosing party's Confidential Information.

13.1.4 In the event that Confidential Information must be disclosed due to an official or court order or a legal obligation, the receiving party may only disclose such Confidential Information as is necessary to fulfill the obligation and shall promptly notify the disclosing party thereof as soon as and to the extent permitted by law. The parties shall assist each other, to the extent legally possible, to avoid disclosure.

13.1.5 The Receiving Party shall treat all Confidential Information in strict confidence and shall exercise a reasonable degree of care, but no less than the degree of care it exercises to protect its own Confidential Information. The receiving party shall not disclose any Confidential Information it receives to any third party (except as otherwise provided in this Agreement). Each party shall be responsible for any breach of this Agreement by its directors, officers, employees, agents or representatives ("Representatives"), regardless of whether the respective Representatives were authorized to receive such information under this Agreement.

13.2. Privacy Policy

Furthermore, the parties undertake to comply with the applicable data protection regulations. Where necessary, the parties shall conclude any necessary data protection agreements, which Web Inclusion shall make available to the customer for conclusion.

13.3 Designation as a cooperation partner

The parties may refer to the other party by name in the press, product brochures, financial reports, on their respective websites and in information materials and indicate that a contractual relationship exists or existed between the parties. Both parties may revoke this authorization in writing to the other party at any time.

 

  1. Contract term and consequences of contract termination

14.1 The contract shall run for the period specified in the contract form. Unless otherwise stated, it has a minimum term of one (1) year.

14.2 The notice periods stipulated in the contract form shall apply. During a minimum term or extension term, the contract cannot be terminated by ordinary termination, but at the earliest at the end of the respective term. Extraordinary termination for good cause remains unaffected by this.

14.3 An important reason for Web Inclusion to terminate the contract for good cause shall be deemed to exist in particular if:

a) the customer is in arrears with the payment of the remuneration and does not make the payment in full despite a written warning with a deadline of at least 14 days;

b) the customer does not fulfill the agreed obligations to cooperate or does not fulfill them in accordance with the contract and the provision of services by Web Inclusion is significantly impaired as a result;

c) the customer seriously violates the contractual provisions;

d) Web Inclusion is obliged to discontinue the provision of services due to official orders or court decisions;

e) Web Inclusion can no longer continue to provide the service for other important reasons.

14.4 Terminations must be declared in writing or by e-mail.

14.5 In all cases of termination of the contract - for whatever legal reason - the customer is obliged to immediately cease using the software services and accessing the software services.

14.6 The customer has the option of exporting the customer's data stored in the software services in a standard format until the end of the contract. After the end of the contract, Web Inclusion shall delete the customer's data remaining in the software services, unless their retention is required due to mandatory legal provisions or for evidence purposes.

14.7 In the event that the contract between the parties is terminated - for whatever legal reason - those provisions shall continue to apply which, according to their meaning and purpose, would justify their continued application even after termination of the mutual performance obligations. These include, in particular, the following regulatory areas of these GTC:

  • Rules on confidentiality and Privacy Policy;
  • Regulations on liability;
  • Regulation on remuneration and invoicing until full payment of outstanding remuneration;
  • Final provisions.

 

  1. Final provisions

Amendments to the GTC: Amendments to these GTC shall be offered to the customer in text form no later than one (1) month before the proposed date of entry into force. The customer shall be deemed to have given their consent if they have not indicated their rejection in text form before the proposed date of entry into force of the amendments. Web Inclusion shall make reference to this approval effect in the notification. A change to the remuneration or other economic agreements from the contract form cannot be brought about via this amendment to the GTC.

15.1 Written form: With the exception of individual agreements, all declarations of intent relevant to the contract and declarations regarding the exercise of formative rights as well as reminders and deadlines must be made in writing, whereby simple e-mails are not sufficient. Signed original documents, signed and subsequently scanned documents, documents with advanced electronic signatures and faxes satisfy the written form requirement. The written form requirement also applies to the amendment and revocation of this written form clause.

15.2 Assignment: The customer may not assign or transfer the contract or individual contractual rights or obligations to third parties without the consent of Web Inclusion. Sentence 1 does not apply to monetary claims. Web Inclusion may assign the contract to a company affiliated with Web Inclusion in accordance with §§ 15 ff. AktG (German Stock Corporation Act) or as part of a company sale in which the main economic assets are to be transferred to a purchaser.

15.3 Severability clause: Should one or more provisions of the contract be or become invalid for any reason or should there be loopholes in this contract, this shall not affect the validity of the remainder of the contract.

Choice of law and arbitration: The contract shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The conflict of laws shall not apply. All disputes arising out of or in connection with this contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC). The place of arbitration shall be Munich, Germany. The arbitral tribunal shall consist of one (1) arbitrator, unless the parties expressly agree otherwise. The language of the arbitration proceedings shall be English. In the interpretation of the contract, the wording of the German version shall prevail.

 

Status: 04.2024