A General Terms and Conditions of Outdooractive AG for business clients
§ 1 Validity, scope and amendments
These General Terms and Conditions apply to all services of Outdooractive AG, Missener Straße 18, DE-87509 Immenstadt, phone: +49 8323 8006-0, mail: firstname.lastname@example.org, registry court, registry number: District Court Kempten, HRB 15575 CEO, Hartmut Wimmer. VAT ID according to §27a UStG: DE 261707005 (hereinafter called “provider”)
(2) Unless otherwise expressly agreed, these Terms and Conditions shall apply exclusively in their version valid at the time the contract was concluded. Conditions of the customer which deviate from or oppose the following provisions do not apply, unless the provider expressly agrees to their validity in writing.
(3) Customer within the meaning of these Terms and Conditions are exclusively entrepreneurs (hereinafter referred to as “customer”). Entrepreneurs within the meaning of the terms and conditions are natural persons or legal entities or partnerships with legal capacity, who act in the exercise of their commercial or independent professional activity upon conclusion of the contract with the provider, including, in particular, public corporations and registered associations.
(4) The terms and conditions may be changed by the provider, provided that this does not affect the essential provisions of the contractual relationship and they are necessary to adapt to developments that were unforeseeable at the time of conclusion of the contract and their non-consideration would significantly disturb the balance of the contract. Significant regulations are in particular those concerning the type and scope of the contractually agreed services and the term, including the rules on termination and liability. Furthermore, adjustments or additions to the terms and conditions can be made, as far as this is necessary to eliminate difficulties in the implementation of the contract due to loopholes resulting from the conclusion of the contract. This may, in particular, be the case if the jurisdiction or legal regulations change and one or more clauses of these terms and conditions are affected. Intended changes to the General Terms are communicated to the customer at least six weeks before they take effect in written form (e.g. letter, email) under emphasis of the respective changes.
(4.1) Insofar as the changes do not merely give the customer a legal advantage and the customer does not agree with the changes, he may object in writing within six weeks after receipt of the notification of the change. In the case of an objection, the previous regulations initially remain unchanged. If the customer does not object, the amended regulations apply after expiry of the opposition period.
(4.2) Customers who make use of recurring services of the provider (so-called subscription, or perpetual obligation) are entitled to a special right of termination in case of a change of these terms and conditions by the provider, which entitles them to terminate the corresponding continuing obligation with the provider before the proposed effective date of the change without notice and free of charge in writing. If the customer does not cancel in writing within six weeks after receipt of the notification of change, the changes become part of the contract at the time of the effective date.
(4.3) The customer is informed of these consequences in the change notification.
§ 2 Subject of the contract
(1) The provider’s offering includes a variety of services in the areas of online platform content marketing (e.g. sub-licensing platform content, cartography, DMS, apps, online marketing, content management, software development, technical support, etc.).
(2) The provider provides the concrete service after placing the order to the terms of the specified service description. This applies, in particular, to the type and scope of the services as well as prices and the processing time in which the provider completes the order.
§ 3 Conclusion of contract
(1). The presentation and promotion of articles on the website of the provider at https://corporate.outdooractive.com/ does not constitute a binding offer to conclude a purchase agreement by the provider, but serves to make a binding offer by the customer (order).
(2) The provider sends the customer a customized and binding offer with an order form. The offer can be bindingly accepted by the customer by signing the order form and returning it to the supplier by post or scan. With the receipt of the signed order form with the provider, the contract with the provider is concluded.
§ 4 Storage of the contract text
The provider saves the order of the customer and the specified order data. The customer has the option to print both the order and the terms and conditions before sending the order to the provider.
§ 5 Prices, terms of payment, due date, set-off, right of retention
(1) Costs and prices result from the respective product offer of the provider. All prices quoted are final prices. They include all price components, including VAT. The amount of a possibly additionally incurred administration fee also depends on the product and results from the respective product offer.
(2) All payments shall be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority save as required by law. If a Party to this Agreement is bompelled to make any such deduction, it will pay tot he receiving Party such additinal amounts as are necessary to ensure receipt by the receiving Party oft he full amount which that party would have received but fort he deduction
(3) Payment by the customer shall be made in accordance with the payment plan attached in the offer of the provider. The methods of payment accepted by the provider are prepayment and direct debit.
(3.1) In the payment method “advance payment by bank transfer”, the provider shall inform the customer about his bank details in the order confirmation. The invoice amount is to be transferred by the customer to the specified bank account of the provider. For transfers from non-European countries, any bank charges are to be borne by the customer.
(3.2) In the case of the payment method SEPA direct debit and the successful transmission of bank details by the customer, the provider is revocably authorized to collect the invoice amount from the specified (giro) account (SEPA mandate). By specifying the current account, the customer confirms that he is entitled to direct debit via the corresponding checking account and that the account has sufficient cover so that the amounts due can be collected by the provider. The invoice amount is due for payment after a SEPA direct debit mandate has been issued, but not before the deadline for the preliminary information has expired. Pre-notification is any communication (such as an invoice) by the provider to the customer that announces a debit of the account via SEPA direct debit. If the customer is an entrepreneur, the deadline for the preliminary information is shortened to one day for both direct debits and follow-on direct debits. The preliminary information on the collection of the SEPA direct debit is sent to the customer by email to the email address provided by him. If the direct debit is not redeemed due to a lack of adequate account coverage or due to an incorrect bank account or if the customer objects to the debit, although he is not entitled to do so, the customer shall bear the fees resulting from the non-payment or the chargeback of the respective credit institution, if he has to represent this.
(4) Contracts with customers from countries outside the EU may incur additional costs for which the provider is not responsible. These are to be borne by the customer. These include, inter alia, costs for the transfer of money by credit institutions (e.g. transfer fees) or import duties or taxes (e.g. customs duties).
(5) The services rendered are charged to the customer by the provider. Unless otherwise agreed in writing, the agreed-upon fee shall be due immediately upon receipt of the invoice. The provider reserves the right to withhold services until the invoice is settled.
(6) During default, the interest rate is 9 percentage points above the base rate. The provider reserves the right to prove and assert a higher damage caused by delay.
(7) Recurring services are billed by the provider according to the individually agreed intervals in the payment plan. If the customer defaults in his contracts for two months or more with monthly payments, the provider may terminate the contract without notice.
(8) The customer shall only be entitled to offset if his counterclaims have been legally established or are undisputed or have been acknowledged by the provider or are in a close synallagmatic relationship with the provider’s claim. The customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 6 Special conditions for contractual services, subject matter, training
(1) The provider offers various services in the field of online marketing and design services, as well as coaching and training in the field of content management. In addition to the analysis of the customer’s Internet offer, the provider also defines goals and measures with the customer for a tailor-made concept, or a campaign of content management or online marketing.
(2) The provider advises and assists the customer in optimizing the reach of his content via the output channels of the Outdooractive platform. However, the provider owes no specific ranking, no specific positioning and no specific traffic or conversion rates of the contents of the customer. Nor does the provider owe a specific economic purpose or advertising success beyond the agreed performance by optimizing the ranges.
(3) Insofar as the subject matter of the contractual service of the provider is the organization of in-house training, this will be provided by the instructor named in the service description in the premises of the customer on site. If necessary, the provider is entitled to replace the intended speaker with another suitable person. Suitable training facilities with computer workstations for demonstration purposes are to be provided by the customer for the purpose of organizing the training. Expenses (e.g. meals, accommodation, conference expenses) as well as travel expenses incurred by the provider are not included in the price for in-house training and must therefore be paid separately by the customer.
§ 7 Special conditions for service and sales contracts, due date, acceptance, warranty, retention of title
(1) Notwithstanding § 5 (4) sentence 2 of these provisions, the remuneration for agreed and performed work performances of the provider shall be due on acceptance of the service by the customer, unless otherwise agreed in the payment plan. The customer is obliged to accept the substantially contractual performance at the request of the provider.
(2) The provider is entitled to demand from the customer one or more partial acceptances of definable parts of the work to be performed. If all parts of service have been accepted, the last partial acceptance is at the same time the final acceptance. A partial or final acceptance is the same if the customer does not accept within a reasonable time set by the provider after delivery or refuses the acceptance or if the service is used by the customer.
(3) The provider guarantees that the services rendered in accordance with the sales contract and the contract for work and services correspond to the contractually defined performance specifications.
(3.1) The customer is obligated to examine the service of the provider, as far as this is in accordance with orderly business transaction, immediately after delivery and to reprimand any defects without delay. If the customer fails to report the defect, the service is deemed to have been approved, unless it is a defect that was not identifiable during the investigation. If such a defect later arises, the notification of the defect must be made immediately after the discovery in writing, otherwise the performance shall also be considered as approved in view of this defect. § 377 of the German Commercial Code (HGB) remains unaffected. The customer is not exempted from his obligation to inspect, even in the case of recourse of the entrepreneur according to § 478 of the German Civil Code (BGB). If, in such cases, he does not immediately indicate the defect asserted by his customer, the service shall also be deemed approved in view of this defect.
(3.2) If the provider’s performance is defective, the provider shall be entitled to subsequent performance. The provider is entitled to determine the type of supplementary performance, taking into account the nature of the defect and the legitimate interests of the customer. Subsequent performance shall be deemed to have failed after the third unsuccessful attempt. This clause does not apply in the case of recourse according to § 478 BGB.
(3.3) In the event of subsequent performance in the event of defects, the provider shall only be obliged to bear the expenses required for this, in particular transport, travel, labor and material costs, as these are not increased by transferring the item to a location other than the registered office or commercial branch of the customer to whom the goods have been delivered. This number does not apply in the case of recourse to § 478 BGB.
(3.4) The claims of the customer including claims for damages become time-barred in one year. This does not apply in the case of recourse to § 478 BGB, this also does not apply in the cases of §§ 438 (1) no. 2 BGB and § 634a (1) no. 2 BGB. This also does not apply to claims for damages for injury to life, limb or health or due to a grossly negligent or intentional breach of duty by the provider or their vicarious agents. The sale of used goods is subject to exclusion of any claims for defects.
(4) Until full payment, the goods ordered by the customer remain the property of the provider.
§ 8 Special conditions for continuing obligations, contract duration, subscriptions, discounts, contract renewal, termination
(1) The respective contract period is based on the contractually agreed service ordered by the customer. Payments are due from the beginning of the month following the delivery of the product that can be processed or from the period agreed for campaigns.
(2) Contracts which have a limited contract period shall end with the expiry of the contractually agreed service period, without the need for separate termination.
(3) For contracts with a minimum term or for subscriptions:
(3.1) The provider reserves the right to grant the customer corresponding transit time discounts for the conclusion of a subscription, which depend on the contract period chosen by the customer.
(3.2) After the expiry of the agreed contract period, the contract is automatically extended by the period originally selected by the customer, but not by more than one year, unless it is given four weeks prior to the end of the respective contract period in text form (e.g. email, letter) is terminated.
(4) The right to extraordinary termination for cause remains unaffected.
§ 9 Change of the contracting party
The transfer of rights and obligations under this contract from the customer to third parties requires the express and written consent of the provider.
§ 10 obligations to cooperate, interruption of service
(1) An essential factor for the provision of the contractually agreed services by the provider is the cooperation of the customer. The customer will support the provider in providing the contractual services to an appropriate extent. In particular, the customer provides the provider with all data and documents necessary for the provision of services free of charge and will provide the provider with all necessary information upon request.
(2) If the services of the provider exist in the preparation of concepts or analyzes or the support of the customer in their preparation, the customer shall provide the necessary cooperation and undertake measures for the implementation of the concepts within the framework of the economically appropriate.
(3) The customer will take the necessary precautions to measure the number of visitors and install the Outdooractive Tracking.
(4) If the customer does not fulfill his duties to cooperate or insufficiently, the provider is released from its performance obligations for this period, as far as the respective services cannot be provided due to insufficient or insufficient fulfillment of the obligations to cooperate or only with disproportionate effort.
§ 11 Data Protection, Data Security and Confidentiality
(1) The contracting parties will comply with the respectively applicable data protection regulations, in particular those valid in Germany, and oblige their employees employed in connection with the contract and its implementation with the data secrecy according to § 53 of theFederal Data Protection Act, insofar as these are not already generally obligated accordingly.
(2) Both the provider and the customer undertake to keep secret any business or company secrets or confidential information that are received or known, unless these are generally known.
(4) If the customer collects, processes or uses personal data, he shall declare that he is entitled to do so in accordance with the applicable provisions of the data protection law and, in the event of a breach, indemnify the provider against claims of third parties.
(5) For the security of the data transmitted to him, the customer is fully self-concerned and undertakes to carry out measures for data protection and against unauthorized access to data in accordance with the current state of the art.
(6) The obligations under paragraphs 1 to 5 exist as long as application data are within the sphere of influence of the provider, even beyond the end of the contract.
(7) If the customer violates a duty under paragraphs 1-6 for reasons for which he is responsible, the provider may claim damages in accordance with § 12 of these GTC.
§ 12 Liability
(1) The provider shall be unlimitedly liable – irrespective of the legal grounds – for intentional or grossly negligent damages (gross negligence). In the case of ordinary negligence, the provider is liable, subject to a more lenient standard of liability according to legal provisions (for example, for due care in own affairs) only for damages resulting from injury to life, limb or health or for damages resulting from the violation of cardinal obligations. Cardinal obligations are the essential obligations that form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfillment of which the customer may rely. The liability in this case is limited to the foreseeable, contract-typical damage. Incidentally, claims for damages are excluded.
(2) As far as the subject matter of the contractual service of the provider is the publication of contents and / or hyperlinks on third-party websites, the provider does not guarantee the duration of the availability or the stock of these publications.
(3) In the event of damage due to loss of data to the customer, the provider shall only be liable to the extent of the expense incurred if the customer regularly and adequately performs data backup and thereby ensures that lost data can be recovered at a reasonable cost. This limitation of liability does not apply in the case of intent and gross negligence.
(4) The provisions of the Product Liability Act remain unaffected.
(5) Insofar as the liability of the provider is excluded or limited, this also applies to the personal liability of the employees, representatives and vicarious agents of the provider.
§ 13 Compliance with legal requirements
(1) Legal responsibility, in particular tele media – as well as press-law and competition-law responsibility for the content of the website of the customer, is the sole responsibility of the customer. The content of the editorial part of the website remains the sole responsibility of the customer. The customer is obliged to check carefully and to ensure that the contents do not violate legal provisions.
(2) The customer warrants that he holds all rights required for the contractual use of the website, in particular that he has the necessary copyright, trademark, ancillary copyright, personal rights and other rights and that he has the right to fulfill the contract the provider may transfer, in terms of time, location and content, to the extent necessary for the performance of the contract.
§ 14 Copyright, use, other protective rights, exemption
(1) The customer grants the provider all rights of use for copyrights, ancillary copyrights and other industrial property rights required for the contractual provision of services, in particular the right to reproduce, distribute, make available to the public as well as processing, in terms of time, place and space. This granting of rights continues even after termination of the contractual relationship. The granting of rights also includes the right to transfer or sublicense the aforementioned rights of use to third parties commissioned to perform the contract, as well as to grant search engine marketing rights to the search engine operators. The user rights to be granted to the provider are simple usage rights.
(2) All copyrights, ancillary copyrights and other rights to all online products created by the provider and / or third parties on behalf of the provider for the customer, in particular images, texts, articles, contributions, comments, banners, graphics, page layouts, concepts, designs and analyses remain with the provider. The provider grants the customer for the duration of the contract period on these online products not exclusive (simple) and spatially unlimited rights to use them in the extent necessary for the execution of the contract, store, reproduce, distribute, make publicly available, perform in public and play in public. With regard to cartography products (print and digital maps), the aforementioned rights apply with the restriction that the customer may only reproduce the cartography products to the extent contractually agreed. Any further duplication is not permitted. Any further duplication requires the conclusion of a license agreement.
The provider grants the customer for the duration of the contract to content that was produced individually on behalf of the customer (example: special programming, landing pages, road networks, tour descriptions), after acceptance and complete payment by the customer a non-excludable (simple) and unlimited right to use, store, reproduce, distribute, make publicly available, publicly perform, publicly present, and publicly reproduce, to the extent necessary for the use of its website. The customer does not have the right to be the author of the materials. The provider remains in any case – even if individual contractual exclusive rights of use were granted – entitled to use the materials created in the context of self-promotion in all media.
(3) The rights of use granted to the customer are not transferable to third parties and are not sublicensable without the written consent of the provider.
(4) The provider is to be named as author in every reproduction, distribution, exhibition and / or public reproduction of the materials. If the client violates the obligation to name the author, he is obliged to pay compensation to the provider.
(5) The materials may not be changed in the original or in the reproduction without the express consent of the provider. Any complete or partial imitation or processing is prohibited. In the event of a breach of this provision, the client must pay the vendor damages.
(6) If the customer wishes to register formal industrial property rights for registration in an official register with regard to the materials created by the provider, he must obtain the prior written consent of the provider.
(7) If third parties assert claims against the provider with the claim that the content of the customer or its use by search engine operators or other users violates legal provisions and / or the contents violate their rights, the customer shall be the provider of all claims of third parties indemnify the provider for the first request and compensate for any additional costs and damages, in particular exempting the provider from the costs of an appropriate legal defense. However, this does not apply if the customer is not responsible for the infringement of the rights of third parties or statutory provisions. The customer is obliged to support the provider within the scope of the reasonable by providing information and documents in the legal defense against the third party. The provisions of this paragraph shall apply mutatis mutandis if third parties for the non-compliance of assurances of the customer under § 13 of these terms and conditions assert claims against the provider.
§ 15 Succession
The provider is entitled to transfer the rights and obligations arising from this contract to a third party. It will bring the transfer to the customer in writing. In the event of a transfer by the provider, the customer is entitled to an extraordinary termination right. Termination must be received by the provider within 14 days of receipt of the transmission notice from the provider in text form. It will take effect at the time of the transfer.
§ 16 Publication, reference
The provider is entitled to cooperate with the customer in publications, e.g. in the context of company brochures or on their own website etc. The provider is also entitled to use image and text documentation on the cooperation with the customer in the context of public relations work.
§ 17 Data processing
The contracting parties conclude a data processing agreement. The corresponding contract according to the EU-GDPR including the legally required attachments is available on the provider’s website on https://corporate.outdooractive.com/en/privacy-policy-at-outdooractive/.
§ 18 Legal system, place of performance, place of jurisdiction and contract language
(1) The law of the Federal Republic of Germany applies excluding the United Nations Convention on Contracts for the International Sale of Goods.
(2) The place of fulfillment for all services arising from the business relationships with the provider is Immenstadt, if the customer is a merchant, a legal entity under public law or a special fund under public law.
(3) If the customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from the business relationship between the provider and the customer is the place of business the provider. For complaints against the provider, the place of business of the provider is the exclusive place of jurisdiction. Mandatory statutory provisions on exclusive jurisdictions remain unaffected by this provision.
(4) The contract language is German. In the event of any doubt regarding the interpretation of the translation of these General Terms and Conditions, the German version alone shall be valid.
B Additional conditions for SaaS services
In addition to the General Terms and Conditions of Outdooractive AG for corporate customers, the following additional terms and conditions apply to contracts for Software as a Service (SaaS) services provided by the provider to the customer.
The customer requires standard software applications and storage space to store the generated application data to perform their business processes. The provider offers the temporary use of such software applications via a telecommunication connection as well as the possibility to store application data for a fee. With this contract the contracting parties agree that the provider provides the customer with the possibility of using the required software applications for access via a telecommunication connection as well as storage space for his application data.
§ 1 Subject of the contract
The subject matter of the contract is the provision of the respectively agreed software applications (hereinafter referred to (also plural): application) for the use of their functionalities, the technical enabling of the use of the application and the granting or brokerage of usage rights to the application as well as the provision of storage space for the customer generated by use of the application and / or the data required for the use of the application (hereinafter: application data) against payment of the agreed fee. The scope of performance of the respective application results from the performance description in the order confirmation.
§ 2 Conclusion of contract
The provider sends the customer a proposal tailored to him on the terms of the provision of the application, which is not yet a binding offer. By returning the signed proposal by post or scan, the customer makes a binding offer to the provider to conclude the contract. The contract is concluded when the provider sends the customer an order confirmation by post or scan. If the order confirmation contains deviations from the offer, which serve to clarify it or which the provider could count on in good faith with the consent of the customer, the order confirmation constitutes a commercial confirmation letter.
§ 3 Provision of application and storage space for application data
(1) From the date agreed in the order confirmation on one central data processing system or several data processing systems (hereinafter referred to (also plural): server), the provider shall hold the application agreed in the order confirmation in the current version for use in accordance with the following provisions.
(2) The provider is responsible for ensuring that the application provided
- is suitable for the purposes specified in the performance description in the order confirmation,
- is free of defects during the entire contract period,
- is free of viruses and similar malware, which invalidates the suitability of the application for the contractual use.
(3) The provider shall provide the customer with the number of user names and user passwords stipulated in the order confirmation. All user names and passwords must be changed by the customer immediately in names and passwords known to him. Further safety measures are agreed on in the order confirmation.
(4) Insofar as the provider obtains the use of third parties, it must make available the last version of the respective application generally available on the market for use by the customer no later than three months after the manufacturer’s general market release. Insofar as the provider produces an application himself, he ensures that the application made by him always corresponds to the proven state of the art.
If and in so far as the provision of a new version or change involves a change in the functionality of the application that is detrimental to the customer, application processes supported by the application and / or restrictions on the usability of previously generated data, the provider shall notify the customer of this at least six weeks prior to the effective date of such change in writing. If the customer does not object to the change in writing within a period of two weeks from receipt of the change notification, the change becomes part of the contract. The provider shall inform the customer of any announcement of changes to the aforementioned deadline and the legal consequences of its expiry if the possibility of contradiction is not perceived.
(5) From the date of the operational provision for the application data agreed upon in the order confirmation, the provider shall keep storage available on the server within the scope agreed in the order confirmation. Further details on storage space and application data can be found in the order confirmation, if necessary.
(6) The application and the application data are backed up regularly on the server, at least on calendar days. The customer is responsible for compliance with commercial and tax retention periods.
(7) Delivery point for the application and the application data is the router output of the provider’s data center.
(8) The system requirements on the part of the customer arise from the order confirmation. For changes to the technical system of the provider, the objection according to of paragraph 4 subsection 2 shall apply. The provider is not responsible for the quality of the required hardware and software on the part of the customer as well as for the telecommunication connection between the customer and the provider up to the delivery point.
§ 4 Technical availability of the application and access to the application data
(1) Unless otherwise stated in the order confirmation, the provider owes the following agreed availability of the respective application and the application data at the delivery point. By availability, the parties understand the technical usability of the application and the application data at the transfer point for use by the customer.
(2) The provider shall provide the customer with the application from the time specified in the order confirmation, but excluding the agreed times of announced unavailability.
(3) The available usage also includes the periods during
- disruptions in or due to the condition of parts of the technical infrastructure not required by the provider or its agents;
- disruptions or other events that are not caused by the provider or one of its vicarious agents, e.g. the exceeding of an agreed authorized use of the application;
- insignificant reduction in suitability for contractual use;
(4) Announced unavailability
(4.1) The provider is entitled in times of announced unavailability to maintain the application and / or server, make backups or other work. Announced unavailability and its estimated duration will be announced to the customer at least 7 days in advance. This period may be shortened in justified exceptional cases.
(4.2) Use of the application in times of announced unavailability
If and insofar as the customer can use the application in times of the announced unavailability, there is no legal claim to this. If the use of an application in times of announced unavailability leads to a reduction or discontinuation of service, the customer has no claim to liability for defects or damages.
Die Anbieterin trägt im Falle von ungeplanten Nichtverfügbarkeiten der Anwendung dafür Sorge, dass die Störungsbeseitigung innerhalb angemessener Zeit eingeleitet und der Kunde hierüber informiert wird. Der Anbieter trägt ferner dafür Sorge, die gemeldete bzw. bemerkte technische Störung in einer dem Umfang der Störung angemessenen Zeit beseitigt wird.
In case of unscheduled unavailability of the application, the provider shall ensure that the fault clearance is initiated within a reasonable time and the customer is informed thereof. The provider shall also ensure that the reported or noticed technical fault is eliminated in a time appropriate to the extent of the fault.
§ 5 Non-fulfillment of main performance obligations
(1) If the provider does not fully comply with the obligations stipulated in §§ 3 to 4, the following regulations shall apply.
(2) If the provider falls into arrears with the initial operational provision of the application, liability shall be governed by section A § 12. The customer is entitled to withdraw from the contract if the provider fails to meet a two-week grace period set by the customer, i.e. within the grace period does not provide the full agreed functionality of the application.
(3) If, after the first operational availability of the application and / or the application data, the provider does not fulfill all or part of the agreed obligations, the monthly usage fee according to § 9 (1) shall be reduced pro rata for the time in which the application and / or the application data was not available to the customer to the agreed extent or the storage space was not available to the agreed extent. When assessing the reduction, the severity, timing and duration of the disturbance shall be taken into account. The amount will be credited to the customer’s account.
(4) If the use of an application is not restored within a reasonable period of time after the provider has become aware of the defect, the customer may, irrespective of the reason for non-performance, but not in the event of force majeure, terminate the contractual relationship with respect to the use of the affected application without notice.
(5) The provider must state that he is not responsible for the reason for the delayed provision or the loss of service. If the customer has not indicated the loss of performance of the provider, then he has to prove in case of dispute that the provider has otherwise obtained knowledge of that.
§ 6 Other services of the provider
(1) At the end of the time unit agreed upon in the order confirmation, the provider sends the customer, upon written or textual request, a separate copy of all application data on standard data carriers (backup) for a separate fee. The obligations of the provider pursuant to article 20 of the EU-GDPR remain unaffected. Further details are agreed on in the order confirmation.
(2) The provider shall provide the customer once, upon the start of the contract with an electronic, printable user manual written in German as pdf available for every application. In addition, the customer is provided with a link under which the respective user manual is permanently available for retrieval.
If an update of the application according to § 3 section 4 is agreed and takes place, the user manual will be adapted accordingly.
The customer is entitled to save, print and reproduce the provided documentation while maintaining the existing trademark rights in adequate numbers for the purposes of this contract. Incidentally, the usage restrictions for the documentation agreed under § 7 apply accordingly to the documentation.
(3) The customer can view an automatically generated report in his DMS at any time.
(4) Further services of the provider can be agreed at any time in writing or in text form, in particular training on applications. Such other services shall be provided against reimbursement of the proven expenses at the provider’s generally applicable prices at the time of commissioning.
§ 7 Rights of use and use of the application, rights of the provider in case of exceeding the rights of use
(1) Usage rights to the application
(1.1) The customer shall receive in the application simple (not sub-licensable and non-transferable) rights of use limited to the term of this agreement in accordance with the following provisions.
(1.2) There is no physical assignment of the application to the customer. The customer may use the application only for his own business activities by his own personnel.
(1.3) The customer is not entitled to make changes to the application. This does not apply to changes that are necessary for the correction of errors, if the provider is in default with the correction of the error, rejects the elimination of errors or is unable due to the opening of insolvency proceedings for the elimination of errors.
(1.4) Insofar as the provider makes new versions, updates, upgrades or other new deliveries with regard to the application during the term, the above-mentioned rights also apply to them.
(1.5) The customer is not entitled to any rights which are not expressly granted to the customer. In particular, the customer is not entitled to use the application beyond the agreed use or to have it used by third parties or to make the application accessible to third parties. In Particular, it is not permitted to reproduce, sell or transfer the application for a limited period of time, in particular not to rent or lend.
(2) Obligations of the customer for safe use
(2.1) The customer shall take the necessary precautions to prevent the use of the application by unauthorized persons, in particular to observe the security provisions resulting from § 10.
(2.2) The customer is responsible for the fact that the application is not used for racist, discriminatory, pornographic, endangering to youth protection, politically extreme or otherwise illegal purposes or contrary to official regulations or conditions or respective data, esp. application data, created and / or saved on the server..
(3) Violation of the provisions of paragraphs 1 and 2 by the customer
(a) If the customer violates the regulations in paragraph 1 or 2 for reasons for which he is responsible, the provider may block the customer’s access to the application or the application data after prior notification in text form, if the breach can be demonstrably eliminated by this measure.
(b) If the customer unlawfully violates paragraph 2.2, the provider is entitled to delete the data or application data affected by this. In the event of unlawful infringement by the user, the customer must inform the provider, on request, without delay, of all information on the assertion of the claims against the user, especially his name and address.
If the customer continues to violate the regulations in paragraphs 1 or 2 despite written notice of the provider, and if he is responsible for this, the provider may terminate the contract without notice.
(c) For each case in which the customer culpably allows the use of the application by third parties (or by users not determined by the customer), the customer must pay an immediately due contractual penalty in the amount of the monthly basic rate. The assertion of damages remains reserved; in this case, the contractual penalty will be offset against the claim for damages.
(d) If the customer is responsible for the breach of duty, the provider may claim damages.
(4) Rights of the customer to emerging databases / database works
If and as far as during the term of this contract, in particular by compilation of application data, by this contract authorized activities of the customer on the server of the provider a database, databases, a database or database works, the customer and the provider have the simple, not exclusive, transferable, spatially and temporally unlimited rights of use of this content.
§ 8 Liability for the rights of third parties
(1) The provider shall inform the customer immediately of rights of third parties or of their assertion and of a resulting impairment of the provision of agreed services and to enable them to have full access to the application data in a suitable manner.
(2) The customer is not obliged to pay if and as far as the rights of third parties affect him in the use of the application.
(3) A non-existing usability of the application and / or the application data according to para. 1 shall be considered as availability within the meaning of § 4 (3) for legal reasons.
(4) Insofar as the provider does not or no longer have the rights required to properly fulfill the contract, in particular the necessary rights of use for software and documentation, and the application is not usable for a longer period than agreed in the order confirmation, § 5 (3) and (5) shall apply mutatis mutandis.
(5) The provider shall indemnify the customer on first request from all claims of third parties, which they assert from their rights against the customer using the application in accordance with the contract. The contracting parties will notify each other immediately in writing if claims are made against them.
(6) The provider is not liable for a violation of the rights of third parties by the customer, if and to the extent that this violation results from exceeding the rights of use granted under this contract. In this case, the customer releases the provider on first request from all claims of third parties.
§ 9 fee
(1) The remuneration for the services to be provided for the granting of use in relation to the use and provision of storage space, including data backup, consists of a basic lump sum and usage-dependent remuneration in accordance with paragraph 2.
(2) The provider is entitled to increase the agreed prices appropriately for the contractual services to compensate for personnel and other cost increases. The provider will announce these price increases to the customer in writing or by email; the price increases do not apply to the periods for which the customer has already made payments. If the price increase is more than 5% of the previous price, the customer is entitled to terminate the contract as a whole with a notice period of three weeks to the end of a calendar month; if he makes use of this right of termination, the non-increased prices will be charged until the termination takes effect. On this right of termination, the provider will inform the customer together with each announcement.
(3) For the rest, the provisions of Section A paragraph 5 of the General Terms and Conditions of Outdooractive AG apply to corporate customers.
§ 10 obligations and obligation of the customer
The customer will fulfill all duties and obligations necessary to fulfill the contract. He will in particular
- keep the usage and access authorizations assigned to him or the users, as well as identification and authentication backups confidential, protect them from access by third parties and do not pass them on to unauthorized users. These data must be protected by appropriate and customary measures. The customer will inform the provider immediately if there is a suspicion that the access data and / or passwords could not have been disclosed to unauthorized persons;
- create the access and usability conditions agreed upon in § 3 (8) in connection with the order confirmation;
- comply with the restrictions / obligations with regard to the rights of use according to § 7, in particular without retrieving or retrieving any information or data, or intervening in programs operated by the provider or intervening or intruding into the provider’s data networks without authorization or such Promote penetration;
- do not improperly use the exchange of electronic messages that may occur within the framework of the contractual relationship and / or using the application for the unsolicited sending of messages and information to third parties for advertising purposes;
- indemnify the provider for any third party claims arising from any unlawful use of the application by it, or resulting from any privacy, copyright or other legal disputes arising from the use of the application;
- the authorized users undertake to comply with the provisions of this agreement that apply to them;
- ensure that he (for example when transmitting texts / data of third parties to the provider’s server) observes all rights of third parties to the material he uses;
- pursuant to § 11 (2), seek the necessary consent of the respective data subject, insofar as he collects, processes or uses personal data when using the application and does not intervene in any legal grounds for a license;
- prior to sending data and information to the provider, check them for viruses and use state-of-the-art anti-virus programs;
- if he transmits data for the purpose of generating application data using the provider’s application, secure it regularly and according to the importance of the data, and create his own backup copies in order to enable the loss of the data and information to enable the same;
- if he transmits data for the purpose of generating application data using the provider’s application, secure it regularly and according to the importance of the data, and create his own backup copies in order to enable the loss of the data and information to enable the same;
- if and as far as the technical possibility to do so by mutual agreement is established, regularly back up the application data stored on the server by downloading; The obligation of the provider for data protection according to § 3 (6) and for the transmission of a backup according to § 6 (1) remains unaffected.
§ 11 data security, data protection
(1) The contracting parties will comply with the respectively applicable data protection regulations, in particular those valid in Germany, and oblige their employees employed in connection with the contract and its implementation with the data secrecy according to § 53 BDSG, insofar as these are not already generally obligated accordingly.
(2) If the customer collects, processes or uses personal data, he is responsible for ensuring that he is entitled to do so in accordance with the applicable provisions of the data protection law and, if necessary, has obtained the consent of those affected. In the event of a breach, the customer indemnifies the provider against claims of third parties.
(3) The provider will only collect and use customer-related data to the extent required by the implementation of this contract. The customer agrees to the collection and use of such data to this extent.
(4) The obligations under paragraphs 1 to 3 exist as long as application data are within the sphere of influence of the provider, even beyond the end of the contract.
(5) In accordance with § 62 of the Federal Data Protection Act or article 28 of the EU-GDPR, the contracting parties conclude the agreement on data processing (see attachment 1). In the event of any inconsistency between this agreement and the Data Processing Agreement, the latter shall prevail.
§ 12 Sanction in case of breach of obligations according to § 11
If a contracting party violates a duty under §§ 11 or the supplier an obligation from the agreement on data processing (attachment 1) for reasons for which he is responsible, so for each case of culpable violation to be determined by the infringing party to be determined, a reasonable contractual penalty whose amount in the case of dispute can be checked for appropriateness by the competent court at the instigation of the infringing party.
§ 13 Contact person and escalation level
(1) The contracting parties shall, in writing for the purpose of channeling the communication required in particular in the event of disruptions in the structure of services, determine a main contact person who can make legally binding declarations for the respective contracting party or bring such declarations about within six working days after the main contact person of the other contracting party has communicated a fact and the need for a decision in writing.
(2) If a vote at the level of the main contact persons has not been made within twelve working days after the announcement of the facts and the need for a decision, the matter must be submitted without delay to the respective management of the contracting parties or their appointed representatives for decision. This escalation level should make a final decision within a period of a further twelve working days from receipt of the transaction.
(3) The above-mentioned escalation levels shall not jeopardize reaction, execution, recovery or other periods agreed in this agreement, including attachments.
§ 14 Duties at and after termination of the contract
At the time agreed in the order confirmation, but at the latest upon termination of the contractual relationship, the provider is obligated to download the data stored by the customer and any data otherwise stored on the mass storage provided pursuant to § 2 (5) to him on an internet link to provide, or to send electronically.
In addition, the provider is obligated, on request of the customer, to provide all data stored by the customer to a third party named by the customer on a standard data medium or by means of remote data transmission. The customer is obliged to compensate the provider for the necessary and proven costs. This does not affect the obligations of the provider pursuant to article 20 of the EU-GDPR.
§ 15 Validity of Section A of these Terms
Incidentally, the provisions of Section A of the General Terms and Conditions of Outdooractive AG apply to corporate customers.
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