General terms and conditions
of Web Inclusion GmbH for "Eye-Able®"
TABLE OF CONTENTS
Scope of application, order of precedence of contractual documents
Registration, provision, operation and support of the software services
1. Definitions
1.1 "GTC" are defined in Section 2.1.
1.2 "Modifications" are defined in Section 4.8.
1.3 "Analytics" are defined in Section 6.5.
1.4 "Software-Services Documentation" means the then-current documentation provided by Web Inclusion, in writing or electronically, including the Statement of Work, regarding the features, functions and use of the Software-Services and/or the hosted environment.
1.5 "Receiving Party" is defined in Section 13.1.2.
1.6 "New Rights" are defined in Section 6.1.1.
1.7 "Action" means both a doing and an omission.
1.8 "Force Majeure" is defined in Section 12.3.
1.9 "Hybrid" / “hybrid” means the combined operation of software in which some parts are hosted on-premise and other parts are provided as SaaS.
1.10 "Customer" is defined in the Order Form.
1.11 "Disclosing Party" is defined in Section 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 the 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 “Order Form” is defined in Section 3.4.
1.20 “Confidential Information” are 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.
1.23 “Erfüllungsgehilfen” are defined in Section 12.1.
2. Scope of application, order of precedence of contractual documents
2.1 These General Terms and Conditions (“GTC”) shall apply to all consulting, training, testing, configuration, implementation, provision, operation, hosting and support services of Web Inclusion GmbH, Gartenstraße 12c, 97276 Margetshöchheim, Deutschland („Web Inclusion“) in relation to the “Eye-Able” solution (“Service”). This includes software solution(s) that are offered as an on-premise solution, as an internet-based SaaS or as a hybrid solution ("Software-Services") as well as training courses that are offered as webinars or in person ("Workshops").
2.2 The Customer‘s general terms and conditions shall 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 shall 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 of the individual contractual documents (collectively, the "Contract") shall apply:
a) the Order Form;
b) the Service Schedule;
c) the Service Level Agreement
d) the data processing agreement (if agreed); and
e) these GTC.
In the event of any contradictions or inconsistencies, the documents listed first in the order of precedence take precedence over those listed next in the order of precedence. If documents are listed at the same level, the more recent document takes precedence over the older document.
3. Offer description, commissioning
3.1 Web Inclusion provides the Software-Services specified in the Order Form and Service Schedule in the agreed operating modus (SaaS, On-Premise, Hybrid). If nothing is specified in the Order Form or Service Schedule regarding the operating modus, the Software-Services are provided as SaaS.
3.2 Web Inclusion provides the Workshops specified in the Order Form as general services that are not subject to a measurable result.
3.3 Additional Services besides the provision of the Software-Services in the agreed operating modus shall be provided by Web Inclusion only insofar as they are expressly agreed upon. Such additional Services are general services and not subject to a measurable result unless expressly agreed otherwise.
3.4 The characteristics and functionality of the Services to be provided by Web Inclusion are specified in the signed order form of Web Inclusion ("Order Form") and the documents referred to in the Order Form, including the Service Schedule, the Service Level Agreement and these GTC. Web Inclusion shall not be obliged to provide any Services or performance features not stipulated in the Contract.
3.5 The order for the provision of the Software-Services in the agreed operating modus, of Workshops and other Services is made via the Order Form.
4. Registration, provision, operation and support of the software services
4.1 Before the Software Services are provided, the Customer must register for a user account with Web Inclusion. Once Web Inclusion has received the data entered by the Customer to register the user account, a confirmation of receipt of the registration will be sent to the e-mail address provided by the Customer.
4.2 The provision of the Software-Services shall be deemed to have taken place as soon as Web Inclusion provides the Customer with web-based access to the Software-Services.
4.3 Installation services and implementation services shall only be provided by Web Inclusion to the extent that they are expressly agreed in the Order Form or Service Schedule (applies in particular to On-Premise and Hybrid).
4.4 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).
4.5 Web Inclusion may discontinue Software-Services that it makes available to the Customer free of charge (e.g. free (beta) versions) at any time.
4.6 The support times, the average availability of the Software-Services insofar as it is hosted by Web Inclusion (applies to SaaS and Hybrid) and the other service levels are stipulated in the Service Level Agreement.
4.7 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.
4.8 Web Inclusion shall be entitled at any time to further develop, restrict or reduce the functionalities of the Software-Services ("Modifications"). Web Inclusion shall inform the Customer about Modifications within a reasonable period of time. Modifications shall be communicated to the Customer via e-mail, within the Software-Services or by any other means of communication chosen by Web Inclusion. If, as a result of the Modification, the Software-Services cannot be used by the Customer for the contractually agreed or assumed purposes or can only be used by the Customer with severe restrictions, the Customer shall have a special right of termination. A restriction is deemed to be severe if the Software-Services is no longer suitable for the purposes of the Customer which have been recognizable for Web Inclusion and have become the basis of the Contract. The Customer shall exercise the special right of termination within one (1) month after becoming aware of the planned Modification by written declaration or via email to Web Inclusion. In this case, the contractual relationship shall end on the day on which the Modification comes into effect, at the earliest, however, upon receipt of the notice of termination by Web Inclusion. The termination shall not become effective if Web Inclusion refrains from implementing the Modification to the Software-Services.
4.9 Web Inclusion reserves the right to block the Software Services for further use by the Customer following a formal warning, unless such a formal warning is dispensable, if the Customer
a) violates the Contract or applicable law and/or
b) has deliberately provided false information during registration and/or
c) violates 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.
5. 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 shall be the location of the servers operating the Software-Services. In all other respects, Web Inclusion shall provide the contractual Services at the registered office of Web Inclusion, unless expressly agreed otherwise.
5.2 Insofar as dates for implementation or completion are agreed, these dates shall only be binding for Web Inclusion if they are expressly designated as binding in writing. Otherwise, the dates shall serve as planning parameters for Web Inclusion.
6. Intellectual property, rights of use
6.1 Material property
6.1.1 Web Inclusion shall remain the owner of all intellectual property rights in the Software-Services, Workshop material and the results of other Services. All intellectual property rights associated with or embodied in or resulting from the Software-Services ("New Rights") shall belong exclusively to Web Inclusion. This shall also apply if New Rights are based on suggestions, specifications, feedback, requirements, ideas, contributions, comments or other input of the Customer, the users or third-parties. New Rights do not include data of the Customer that is processed via the Software-Services. Unless otherwise agreed, in relation to Web Inclusion, the Customer shall exclusively be entitled to all rights in and in relation to the aforementioned Customer data.
6.1.2 Under no circumstances shall the Customer be granted exclusive rights of use to pre-existing components. "Pre-Existing Components" shall mean, in addition to the Software-Services, all components of software developments or other work results developed by Web Inclusion or a third-party 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 related developments of Web Inclusion for its own business purposes for the duration of the Contract. Further specifications result from the agreed Order Form and Service Schedule. The Customer shall comply with the agreed scope of the license, that may stipulate a limited use of the license with regard to the users authorized to use and/or areas of use of the Software-Services. The right of use shall arise upon payment of the first fee due.hall arise upon payment of the first fee due.
6.2.2 Web Inclusion offers selected Customers (e.g. non-profit organisations) ‘lifetime licences’ for selected Software Services for a one-time fee. The right of use for an unlimited period of time relates solely to the right of use under copyright law; in all other respects, the rights are limited to the product lifetime. The following applies for the duration of the product lifetime of the software solution(s) in question, but to a maximum von 10 years after the conclusion of the Contract:
a) The Customer shall receive the standardised updates, patches, hotfixes. There is no entitlement to upgrades and new versions.
b) The Customer shall receive the agreed support.
c) If the Customer has purchased a SaaS solution or a hybrid solution, Web Inclusion shall be responsible for hosting the cloud components.
Once the end of the product lifetime or, as the case may be, the end of the ten-year-period has been reached, Web Inclusion shall provide the Customer with the current on-premise version for further use. There is no entitlement to further updates, patches, hotfixes, support or hosting services. Web Inclusion will provide reasonable notice of the imminent end of the product lifetime. Web Inclusion will enable the Customer to transition from the cloud-bases solution to the on-premise solution at the end of the product lifetime or, as the case may be, at the end of the then ten-year period.
6.2.3 The Software-Services may only be reproduced to the extent necessary for the agreed use. All further rights, in particular the right to distribute the Software-Services, including the right to rent, edit and make it publicly accessible, remain exclusively with Web Inclusion.
6.2.4 Decompilation may only take place in the cases required by law in accordance with § 69e of the German Copyright Act (UrhG) or applicable similar national law. 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.
6.2.5 In the event that the agreed scope of the license is exceeded, Web Inclusion shall be entitled to demand additional remuneration in accordance with the provisions of the Order Form. If no remuneration has been agreed in the respective Order Form for cases where the scope of the license granted in the Order Form is exceeded, Web Inclusion shall be entitled to demand an additional remuneration which shall be based on the license fee agreed between the Parties in proportion to the agreed scope of the license. Any further claims for damages shall remain unaffected.
6.2.6 In all other respects, the Customer is not allowed to:
a) copy, translate, disassemble, decompile, reverse engineer or otherwise modify Software-Services, in whole or in part, or create derivative works therefrom; provided that the Software-Services Documentation may be copied for internal use to the extent necessary;
b) use Software-Services in a way that violates applicable law, in particular the transmission of information and data that is illegal or infringes the intellectual property rights of third-parties;
c) jeopardize or circumvent the operation or security of the Software-Services.
6.2.7 The Customer is liable for the actions of users to whom Customer has provided access to the Software-Services as for its own actions.
6.3 Workshop documents
6.3.1 Upon full payment of the remuneration owed, the Customer shall be granted a non-transferable, non-exclusive right to use the Work-shop Materials for its own internal purposes, without restriction as to time or place.
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
With regard to other results of Web Inclusion Services, the Customer shall be granted the non-exclusive and permanent right to use these results for Customer’s own business purposes.
6.5 Analysis data
Subject to the conditions set forth in this Section, Web Inclusion may create anonymized analytics with aggregated data for which (in part) data of the Customer and information resulting from the use of the Software-Services by the Customer and the users are used (“Analytics”). The data is anonymized and aggregated for the Analytics so that it is impossible to draw conclusions about individual companies or natural persons. The Analytics 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 Analytics and the process of anonymization are carried out in accordance with the regulations of the General Data Protection Regulation.
7. Remuneration and billing modalities
7.1 License fees
7.1.1 The ongoing fees are billed 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 billed on a pro rata basis .
7.1.3 Services remunerated on a time and material basis shall be invoiced in arrears by month, unless otherwise agreed.
7.1.4 Web Inclusion shall be entitled to adjust the current fees and other rates of remuneration in compliance with the following principles:
a) Web Inclusion shall be entitled to change remuneration rates to a reasonable extent by adjustment notification in writing or via email to the Customer with a notice period of two (2) months in order to compensate for cost increases and functional expansions.
b) In case of doubt, the adjustment of the remuneration rates shall be reasonable if the currently agreed remuneration rates are not increased by more than 10 %.
c) If the adjustment is not reasonable, the Customer shall have a right of objection. If the Customer does not exercise the right of objection in writing within four (4) weeks after receipt of the notice of adjustment, the new rates of remuneration shall be deemed agreed. If the Customer exercises the right of objection in due time, Web Inclusion shall have the option to terminate the Contract within of four (4) weeks after receipt of the objection.
7.2 Remuneration for Workshops and for other Services.
7.2.1 If additional Services are commissioned, invoicing shall generally take place on a pro rata basis in advance and on a pro rata basis after the Services have been rendered, unless the Parties agree otherwise. Services that are billed on the basis of time and effort shall be billed 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 expenses required and proven for the provision of the Workshops and other Services, including travelling expenses. The provision of Workshop materials 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 value added tax. If VAT is payable, the statutory VAT applicable at the time of delivery shall be added to the net price shown.
7.3.2 All remunerations shall be due for payment within thirty (30) days after 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 mail or transmit the invoices to the Customer electronically (e.g. in PDF format via e-mail). The Customer agrees to electronic billing.
7.3.4 The Customer may only offset uncontested or legally established claims and may only base a right of retention on uncontested 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 of third parties, including the tax authorities, in relation to the taxes, fees, duties and customs duties referred to in sentence 1. If Web Inclusion is obliged by law to deduct taxes, fees, duties or customs duties from the remuneration received, the Customer is obliged to reimburse Web Inclusion the corresponding amount.
8. Cooperation of the customer
8.1 The general obligations of the Customer to cooperate are listed below. Further obligations of the Customer to cooperate may result from the Order Form and individual agreements between Web Inclusion and the Customer.
8.2 The Customer shall cooperate in the performance 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, contents and documents required for the performance of the Services, which Web Inclusion requires for the execution of the Contract.
8.3 The Customer shall inform itself and keep itself informed about the essential functional features of the Software-Services as well as its technical requirements (e.g. with regard to hardware requirements, operating systems, supported browser versions, interfaces).
8.4 The Customer shall be responsible for ensuring that the Customer's IT systems meet the technical requirements and are up to date. Web Inclusion shall not assume any responsibility for the correct display and functioning of the Software-Services if the user uses an Internet browser which is not supported by the Software-Services or which 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 itself.
8.6 The Customer shall install new software versions provided by Web Inclusion without delay (applies to On-Premise and Hybrid).
8.7 The Customer shall test the Software-Services and new software versions of the Software-Services thoroughly to ensure that they are free of faults before starting to use them productively. The Customer shall take appropriate precautions in the event that the Software-Services do not work or does not work properly (e.g. by backing up data, diagnosing faults, regularly checking the results). Unless expressly agreed otherwise in writing, all persons engaged by Web Inclusion in the course of providing the Service may assume that all data with which they may come into contact are backed up.
8.8 The Customer shall bear the risk that the Software-Services as well as the other Services meet its requirements and can be used for its economic purposes. The Customer shall be solely responsible for ensuring that the Services of Web Inclusion comply with the legal and official regulations applicable to the Customer and its internal compliance regulations.
8.9 If the Customer uses software which is not provided by Web Inclusion, the Customer shall ensure that it has all rights of use to such software which it uses in connection with the Services of Web Inclusion.
8.10 The Customer shall treat its access data to its user account as confidential and shall not make them accessible to third-parties. The Customer shall be responsible for any 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 shall be liable to Web Inclusion for actions of the users.
8.11 The Customer shall take reasonable precautions in the event that the Software-Services does not function or does not function properly. In this context, the Customer shall regularly perform data backup checks. The Customer is solely responsible for the regular and complete backup of its business-relevant data and documents.
8.12 The Customer is responsible for ensuring that the information and documents posted by it in the Software-Services are correct and free of any malware such as viruses, worms, Trojans, etc. 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 uploaded in accordance with the applicable legal provisions.
8.13 If files are imported, 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 is obliged to perform all acts of provision of resources 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 fails to comply or fails to properly comply with required obligations to cooperate, the obligation of Web Inclusion to provide Services shall lapse to the respective extent and for the respective period of time during which the provision of Services by Web Inclusion is dependent on the prior performance of the Customer's obligations to cooperate. Web Inclusion shall be entitled to demand compensation for any additional expenses incurred due to a missing or delayed act of cooperation.
9. 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 to either ensure that the Software-Services are used under the agreed license conditions from then on, or to acquire the necessary number of additional licenses by separate contract.
9.2 Web Inclusion is entitled to control the use of the Software-Services at reasonable intervals by means of inspections. The inspection can be carried out either by Web Inclusion or by a third party commissioned by Web Inclusion. Web Inclusion shall take the Customer's confidentiality interests into account appropriately.
9.3 In principle, the inspection shall be carried out by self-disclosure by the Customer, whereby the Customer shall use 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 a violation of rights by the Customer, Web Inclusion may also carry out a inspection on site at the Customer's premises. The Customer shall support Web Inclusion to a reasonable extent in the inspection, in particular by granting access to the IT systems to the extent necessary.
9.4 Web Inclusion's own costs of the inspection shall be borne by Web Inclusion if the Customer is sufficiently licensed. If the Customer is not sufficiently licensed, the Customer shall bear Web Inclusion's reasonable costs incurred as a result of the inspection.
10. Assertion of industrial property rights by third-parties
10.1 If a third-party claims that the use of the Software-Services infringes the property rights of a third-party, the Customer shall immediately inform Web Inclusion thereof in writing and in detail. If the Customer discontinues the use of the Software-Services in order to mitigate damages or for other reasons, the Customer shall 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 will assist each other to the best of their ability to defend their rights against the third-party and to defend against the alleged infringement or to enter into a commercially reasonable settlement.
11. Warranty
11.1 Unless expressly agreed otherwise in writing, the provision of Services (in particular development, customizing and implementation services, consulting, training and data export services) shall be governed by the law relating to contracts for services. If a service is not provided in accordance with the Contract and if Web Inclusion is responsible for this, Web Inclusion shall be obliged to provide the service in accordance with the Contract within a reasonable period of time without any additional costs for the Customer. The prerequisite for this is a written complaint by the Customer.
11.2 All information on the Services shall not constitute a guarantee for the quality of the Services, unless a guarantee has been expressly agreed in writing. A certain quality of the Services cannot be derived from advertising materials or public statements if their specific content has not been expressly confirmed by Web Inclusion in writing.
11.3 The following warranty provisions shall apply to the Software-Services in deviation from the aforementioned Section 11.1
11.3.1 Malfunctions shall be notified in text form by comprehensibly describing the defective mode of operation, as far as possible substantiated by records (e.g. screen shots) or other documents illustrating the defects. The notice of defect must allow the reproduction of the defect. The Customer should name a contact person capable of speaking about the defect. The Customer statutory obligations to inspect and give notice of defects shall remain unaffected.
11.3.2 Web Inclusion does not assume any warranty for the correct display and functioning of the Software-Services if the Customer uses a web browser which Web Inclusion does not support or which is not up to date.
11.3.3 A material defect shall only exist if the Software-Services deviate in essential parts from the Software-Services Documentation or contractually agreed nature.
11.3.4 In the event of a material defect, Web Inclusion shall be entitled to remedy the defect by providing a new version or an update within the scope of Web Inclusion’s version, update and upgrade planning. The remedy of the defect may also consist in Web Inclusion showing the Customer reasonable possibilities to avoid the effects of the defect.
11.3.5 In the event of defects of title, Web Inclusion shall, at its own discretion, either (i) procure for the Customer the right to use the Service as agreed or (ii) modify the Service in a way that the alleged infringement is invalidated, but the contractual use of the Customer is not unreasonably impaired thereby.
11.3.6 A right to perform self-help remedies, in particular according to Section 536a (2) German Civil Code (‘Bürgerliches Gesetzbuch – ‘BGB’), does not exist.
11.3.7 The applicable response times and remedy times are set out in the agreed Service Level Agreement.
11.3.8 The warranty is excluded if the malfunctions are based on the fact that
a) the Customer or the users authorized by the Customer have used the Software-Services improperly; whereby improper use shall be deemed to exist, in particular, if the Software-Services are not used in accordance with an existing Software-Services Documentation;
b) the Customer has not performed cooperation obligations or has not performed them in a timely manner.
11.3.9 The warranty for defects in free services (e.g. free (beta) versions of the 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 in the case of free services.
11.3.10 If Web Inclusion renders Services for troubleshooting or correcting malfunctions without being obliged to do so, Web Inclusion shall be entitled to demand an expense-related remuneration to a reasonable extent. This shall apply in particular if a reported material defect cannot be reproduced or if the warranty is excluded pursuant to Section 11.3.8 or if it subsequently turns out that there was no defect.
11.4 Warranty claims of the Customer become barred by limitation within one year. In this case, the limitation period begins with the transfer 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 an injury to life, limb or health has occurred because of a defect caused by slight negligence or if a guarantee has been assumed for the quality of the contractual performance.
11.5 Any liability for damages and wasted expenditures shall be governed exclusively by Section 12.
12. Liability
12.1 Customer’s liability
The Customer is liable for intent and negligence. The Customer shall be liable for the conduct of its employees, persons employed in performing a contractual obligation for whom the employer is vicariously liable ("Erfüllungsgehilfen"), corporate agents, 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 stipulated in Sections 12.2.2 to 12.2.7 shall apply.
12.2.2 Web InclusionWeb Inclusion shall be liable for the negligent breach of obligations the fulfilment of which is essential for the proper performance of the Contract, the breach of which endangers the achievement of the purpose of the Contract and the observance of which the Customer may regularly rely on. In the latter case, however, Web Inclusion shall only be liable for the foreseeable damage typical for the Contract. The Web Inclusion shall not be liable for the negligent breach of obligations other than those mentioned in the preceding sentences.
12.2.3 The liability for damages and reimbursement of wasted expenditures shall be limited per case of breach to the contract value of one contract year or EUR 10.000,00, whichever maximum sum is higher. If, however, 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 hereinabove. In the event of several cases of breaches in one contract year, the liability of Web Inclusion 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 maximum sum is higher.
12.2.4 Loss of profit shall not be reimbursed by Web Inclusion. In the event of data loss, Web Inclusion shall only reimburse the costs of recovery up to the amount that would have been incurred for the recovery of the data if it had been properly and regularly backed up.
12.2.5 The strict liability for defects already existing at the time of conclusion of the Contract pursuant to Section 536a (1) German Civil Code (‘Bürgerliches Gesetzbuch’ – ‘BGB’) is excluded.
12.2.6 Insofar as liability is excluded or limited according to this Section, this exclusion or limitation shall also apply to the personal liability of the employees, persons employed in performing a contractual obligation for whom the employer is vicariously liable (‘Erfüllungsgehilfen’) and corporate agents of Web Inclusion and all subcontractors of Web Inclusion.
12.2.7 The exclusions of liability pursuant to this Section 12.2 shall not apply in the event of injury to life, body and health or insofar as Web Inclusion has assumed a guarantee. Liability under the Product Liability Act shall remain 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 any circumstances beyond the reasonable control of either Party, including but not limited to war, terrorist attacks, natural disasters, pandemics (including but not limited to new COVID-19 mutations), accidents, industrial action; acts of third-parties or official measures or measures by the public authorities and/or courts to the extent that these are not based on fault of the Party whose performance fails to take place or is 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 Section 12.3. The Parties undertake, in the event of an intensification of measures to combat the Corona pandemic after the conclusion of the Contract, to keep the impairments to the provision of Services caused thereby as low as possible. The respective Party shall only be released from the performance of its obligations due to intensification of measures in connection with the Corona Pandemic to the extent that the performance of the Service is objectively impaired or impossible.
12.4 Limitation period
In the event of liability due to intent, gross negligence, personal injury or under the Product Liability Act, the statutory limitation periods shall apply. Otherwise, all claims for damage or reimbursement of futile expenses of the claimant in case of contractual and non-contractual liability shall be subject to a limitation period of one year. The limitation period shall commence at the time when the claimant has knowledge or at least reasonably ought to have had knowledge of the other Party's breach of duty (negligent lack of knowledge). However, it shall commence at the latest upon expiry of five (5) years from the date on which the claim arose.
13. Confidentiality and data protection
13.1 Protection of Confidential Information
13.1.1 The Receiving Party may use Confidential Information of the Disclosing Party only for the performance of contractual obligations or - to the extent necessary for this purpose - for the utilization of contractual Services.
13.1.2 "Confidential Information" means information as defined in the sentence 2, which is disclosed by one Party ("Disclosing Party") to the other Party ("Receiving Party") or otherwise becomes known to the Receiving Party in the course of the project, irrespective of 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 under this Contract, 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 identifiable as Confidential Information of the Disclosing Party.
13.1.3. However, Confidential Information shall not include any 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 without any action or inaction by the Receiving Party, (iii) was already in the Receiving Party's possession 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 is required to be disclosed due to an order by a public authority or a court or due to a legal obligation, the Receiving Party shall disclose only such Confidential Information that is necessary to comply with the obligation and shall promptly notify the Disclosing Party as soon as and to the extent permitted by law. The Parties shall assist each other, to the extent legally possible, in avoiding disclosure.
13.1.5 The Receiving Party shall treat all Confidential Information as strict confidential and shall exercise a reasonable degree of care, but not less than the degree of care it exercises to protect its own Confidential Information. The Receiving Party shall not disclose any Confidential Information received by it to any third-party (except as otherwise provided in this Contract). Each Party shall be responsible for any breach of this Contract by its managing directors, executive staff, employees, agents or representatives ("Representatives"), regardless of whether the respective Representatives were authorized to receive such information under this Contract.
13.2. Data protection
The Parties undertake to comply with the applicable data protection regulations. If necessary, the Parties shall conclude any necessary data protection agreements, provided by Web Inclusion to the Customer for conclusion.
13.3 Designation as cooperation partner
The Parties may name the other Party in the press, product brochures, financial reports, in their respective websites and in information materials and indicate that a contractual relationship exists or existed between the Parties. Both Parties may revoke this authority at any time in writing vis-à-vis the other Party.
14. Term of the Contract and consequences of termination
14.1 The Contract can be cancelled with three (3) month’s to the end of a contract year, but not earlier than the end of the minimum contract termin. Unless otherwise stated, it has a minimum term of one (1) year.
14.2 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. The extraordinary termination for good cause remains unaffected.
14.3 An important reason for Web Inclusion to terminate the Contract for good cause exists in particular if:
a) the Customer is in default of payment of the remuneration and fails to make payment in full despite a written warning setting a deadline of at least 14 days;
b) the Customer does not fulfill the agreed obligations to provide resources or cooperate or does not fulfill them in accordance with the Contract and Web Inclusion's provision of Services 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 the provision of Services for other important reasons.
14.4 Notices of termination have to be declared in writing or via e-mail.
14.5 In all cases of termination of the Contract - for whatever legal reason - the Customer is obliged to immediately stop using and accessing the Software-Services.
14.6 Until the end of the Contract, the Customer shall be given the opportunity to export the Customer's data stored in the Software-Services in a standard format. After the end of the Contract, Web Inclusion shall delete the data of the Customer remaining in the Software-Services, unless their retention is required due to statutory provisions or for evidentiary 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 obligations to perform. This includes in particular the following regulatory areas of these GTC:
· Provisions on confidentiality and data protection;
· Provisions on liability;
· Provisions on remuneration and invoicing until full settlement of outstanding remuneration;
· Final Provisions.
15. Final provisions
15.1 Amendments to the GTC: Amendments to these GTC shall be offered to the Customer at least one (1) month before their proposed effective date in text form. The Customer's consent shall be deemed granted if it has not notified its refusal in text form before the proposed effective date of the amendments. Web Inclusion shall refer to this approval effect in the notification. A change in the remuneration or other economic agreements from the Order Form cannot be obtained via an amendment to these GTC.
15.2 Written form: With the exception of individual agreements, all declarations of intent relevant to the contract and declarations on the exercise of rights as well as reminders and setting of deadlines must be 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 also applies to the amendment and cancellation of this written form clause.
15.3 Assignment: Without the consent of Web Inclusion, the Customer may neither assign nor transfer the Contract nor individual contractual rights or obligations to third-parties. Sentence 1 does not apply to monetary claims. Web Inclusion may assign the Contract to a company affiliated with Web Inclusion pursuant to Section 15 et seq. German Stock Corporation Act (‘Aktiengesetz – ‘AktG’) or within the scope of a company sale in which the material economic assets are to be transferred to a purchaser.
15.4 Severability clause: Should one or more provisions of the Contract be or become ineffective for any reason whatsoever or should there be gaps in the provisions of this Contract, this shall not affect the validity of the remaining provisions of the Contract.
15.5 Choice of law and court of 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 law provisions 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 is Hamburg, Germany. The arbitral tribunal consists of one (1) arbitrator, unless expressly agreed otherwise between the Parties. The language of the arbitral proceedings is English. For the interpretation of the Contract, the wording of the German language version shall prevail.
Version: August 1st, 2024