General Terms and Conditions of Business and Licensing
Hase & Igel GmbH
Hase & Igel GmbH, Julius-Mosen-Platz 3, 26122 Oldenburg, represented by the Managing Director Jan Schoenmakers (hereinafter “Licensor”), offers entrepreneurs and companies (hereinafter “Licensees”) the use of various software solutions for comprehensive data and market analyses.
§ 1 Validity
(1) These General Terms and Conditions of Business and Licensing (GTC) in the version valid at the time of the order shall apply exclusively. Deviating or conflicting terms and conditions shall not be recognized unless they are expressly agreed to in writing. These GTC shall also apply if the services of the Licensor are provided and/or rendered in the knowledge of deviating or conflicting terms and conditions.
(2) Individual agreements made with the Licensee in individual cases shall take precedence over these GTC.
§ 2 Subject matter of the contract
(1) The subject matter of these GTC is the provision of the software solutions developed by the Licensor (hereinafter referred to as “Software”) for a limited period of time during the term of the contract, together with the granting of the rights required for their contractual use in accordance with § 6, as well as – if desired by the Licensee – other additional services (e.g. adaptation to the Licensee’s individual requirements).
(2) The Software is made available by the Licensor via the Internet. The Licensee is enabled to use the software stored and running on the servers of the Licensor or a service provider commissioned by the Licensor via an Internet connection for its own purposes during the term of the agreement. The user documentation can also be viewed at any time while using the software and can be downloaded in a common format.
§ 3 Conclusion of contract
(1) The presentation of the Software on the Licensor’s websites does not constitute a binding offer to conclude a contract.
(2) Upon request, the Licensor shall prepare an offer which, after acceptance by the Licensee, shall lead to a binding conclusion of the contract.
(3) Alternatively, Licensee may place an order on Licensor’s websites as set forth below:
a) To place an order on the Licensor’s websites, the Licensee must first register on the Licensor’s websites with his name and e-mail. Then he can select the presented software tools and add them to the shopping cart. By sending the order, the Licensee makes an offer to conclude a contract.
b) The licensor checks the corresponding application. He is entitled to refuse registrations without giving reasons. After positive verification, the licensee will receive a confirmation e-mail. The specific details of the contract are summarized in the order confirmation. Upon receipt of the confirmation e-mail, the contract is deemed concluded.
(4) After the conclusion of the contract and receipt of the agreed payment or, if applicable. after setting up the ordered software tool, the Licensor shall enable the ordered functions or send the Licensee the access data for the corresponding number of authorized users in electronic form.
(5) The Licensee is obliged to keep its access data and password secret and to protect them from misuse by third parties. Passing on access authorizations or sharing them with third parties is not permitted. The licensor is entitled to block access to the software in case of misuse.
§ 4 Type and scope of the service
(1) The Licensor shall make the use of the Software available to the Licensee at the router output of the respective data center of the Licensor (“Handover”). The scope of performance of the software at the time of conclusion of the contract results from the selection made by the Licensee and is determined by the performance description valid at the time of conclusion of the contract. The software remains on the licensor’s server at all times. The Licensor does not owe the guarantee of the data connection between the transfer point and the IT systems of the Licensee.
(2) The Licensor does not owe any adaptation to the individual needs of the Licensee, unless the parties have agreed otherwise.
(3) As required, the Licensor shall advise the Licensee on tool operation, strategy and its implementation, and data interpretation. The Licensor shall inform the Licensee of any additional costs incurred for this purpose.
(4) The Licensor may update and further develop the Software at any time and, in particular, adapt it due to a changed legal situation, technical developments or to improve IT security. In doing so, it shall give due consideration to the legitimate interests of the Licensee and inform it in good time of any necessary updates. In the event of a significant impairment of the legitimate interests of the Licensee, the Licensee may terminate the Agreement in writing or in text form within one month after the change in service takes effect.
(5) The Licensor shall regularly perform maintenance on the Software and inform the Licensee thereof in due time. Maintenance shall be performed on a regular basis outside of Licensee’s normal business hours, unless due to compelling reasons, maintenance must be performed at a different time.
§ 5 Service Levels; Troubleshooting
(1) The Licensor grants an overall availability of the Software provided for use of at least 99.5% per month at the Delivery Point. The handover point is the router output of the licensor’s data center.
(2) The guaranteed availability does not include the availability of external data used by the Software. Maintenance times as well as times of malfunction under observance of a repair time of up to 4 hours in case of serious malfunctions and up to 12 hours in case of considerable malfunctions – in each case from notification and within the service times (see par. 3) – are not considered times of availability of the software. Periods of insignificant disruptions are not taken into account when calculating availability. The licensor’s measuring instruments in the data center are decisive for the proof of availability.
(3) The Licensee shall report any malfunctions to the Licensor without delay. Fault reporting and repair is generally possible from Monday to Friday (excluding national holidays) between 9:00 a.m. and 6:00 p.m. (service hours). Upon receipt of a proper fault report from the Licensee, the Licensee undertakes to start the analysis and, if possible, the elimination of the fault within the following response times at the latest. The troubleshooting work shall be carried out within the scope of the Licensee’s possibilities in compliance with its contractual obligations. A claim to the elimination of the fault within a certain time does not follow from the agreement of the response times.
a) In the event of serious malfunctions (the use of the software as a whole is not possible), the Licensor will immediately begin to remedy the malfunction, but no later than within two hours of receipt of the proper malfunction notification.
b) In the event of significant disruptions, the Licensor shall begin to remedy the disruption within one working day.
c) The removal of insignificant disturbances is at the discretion of the licensor.
(4) For each full hour of the shortfall in the monthly availability of the services, the Licensor shall forfeit a contractual penalty in the amount of. 0.1 % of the agreed remuneration in the case of a one-time call-off or iHv. 0.5% of the agreed monthly remuneration. The amount of the contractual penalty shall be limited to 25% of the fee for a single call-off or to 100% of the fee for the month concerned for repeated call-offs.
(5) Any other statutory claims of the Licensee against the Licensor shall remain unaffected.
§ 6 Scope of use and rights
(1) The Licensee shall be entitled to use the Software provided exclusively for its own use within the scope of its business operations. A physical transfer of the software to the licensee does not take place.
(2) Insofar as the Software runs exclusively on the servers of the Licensor or of a service provider commissioned by the Licensor, the Licensee shall not require any rights to use the Software under copyright law, nor shall the Licensor grant any such rights. However, the licensor grants the licensee
- for one-time call-off and/or
- for repeated call-offs during the time specified in the contract
a simple, i.e. non-sublicensable and non-transferable right, limited in time to the duration of the contract, to access and use the software to the extent agreed in the contract. The licensee is entitled to download the data provided for internal use, to reproduce it and to store it for an unlimited period of time.
(3) The Licensor shall provide the Licensee with the storage space required for unrestricted use in accordance with the contract for the data generated by the Licensee and the Authorized Users through use of the Software and the data required for this purpose.
(4) If and to the extent that database values are created on the Licensor’s server during the term of the agreed use of the software, in particular by compiling application data, as a result of activities of the Licensee permitted thereafter, the Licensee shall be entitled to all rights to these database values for an unlimited period of time. The Licensee grants the Licensor the right to reproduce the data created by the Licensee during the use of the Software to the extent necessary to fulfill the contractual obligations. The same applies to files uploaded by the licensee to the licensor’s servers.
(5) The Licensee shall remain the owner of the Database Values even after the end of the Agreement. A storage of the data on the server of the licensor takes place during the contractually specified time, in which the licensee can download his database values at any time and store them stationary with himself. Thereafter, the Licensor shall completely delete all data stored by the Licensee on its servers.
§ 7 Duties and Obligations of the Licensee
(1) The Licensee shall be solely responsible for the content of the data entered by it into the Software or generated by it. In this respect, the Licensor does not carry out any checks on this data.
(2) The Licensee warrants that the content and data provided by the Licensee on the Licensor’s servers and their use by the Licensor do not violate applicable law, official orders, third-party rights or agreements with third parties. The Licensee shall indemnify the Licensor upon first demand against any claims asserted by third parties on the basis of a breach of this clause.
(3) The Licensee undertakes to refrain from doing anything that is likely to impair the rights of the Licensor. This also includes, for example, publishing or passing on tool access to unauthorized users, publishing or passing on screenshots or filmed videos from the software or offers from the licensor to third parties. The Licensee shall be liable for infringements of the rights of third parties to whom it grants access to the Licensor’s services, unless it proves that it is not responsible for such infringements.
(4) The Licensee shall regularly perform appropriate data backups on its own responsibility.
(5) These obligations shall also apply without exception to users of a demo license provided free of charge.
§ 8 Remuneration, due date and default
(1) All prices stated in the offers of the Licensor and/or on the websites of the Licensee are exclusive of the applicable statutory value added tax.
(2) License fees shall be incurred in each case upon commissioning. Other expenses are billed on a monthly basis. All invoice amounts are payable within 14 days from the date of invoice without deduction. Upon expiration of this period, the Licensee shall be in default.
(3) Interest on arrears shall be nine percent (9%) above the prime rate applicable at the time.
§ 9 Warranty
(1) The Licensee shall notify the Licensor of any defects without delay.
(2) With regard to the granting of the use of the software as well as the provision of storage space, the warranty provisions of tenancy law (§§ 535 et seq. BGB) shall apply, unless otherwise stipulated below or in the offers or in the description of the software tools on the Licensor’s websites.
a) The warranty for only insignificant reductions in the suitability of the service is excluded.
b) The liability without fault pursuant to § 536a para. 1 BGB for defects that already existed at the time of conclusion of the contract is excluded.
(3) In the case of consulting or other service contracts, the Licensee shall have no claims against the Licensor based on any material defects and/or defects of title. The liability provisions of § 10 shall apply to claims for damages and/or reimbursement of expenses of the Licensee in connection with such services.
(4) In the case of contracts for work and services, the warranty provisions of the law on contracts for work and services (§§ 631 et seq. BGB) shall apply, unless otherwise specified below or in the offers or in the description of the software tools on the Licensor’s websites.
a) Licensee shall inspect the Work immediately upon receipt and give notice of any defects without undue delay.
b) If the immediate inspection or notification of defects is omitted, the Licensee shall have no warranty claims with respect to obvious or known defects.
(5) Claims for defects may be asserted within 12 months from the statutory commencement of the limitation period. The liability regulations of § 10 apply.
§ 10 Liability
(1) The licensor is liable without limitation
- in the event of intent or gross negligence,
- for injury to life, limb or health,
- in accordance with the provisions of the Product Liability Act as well as
- to the extent of any warranty assumed by the Licensor.
(2) In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (cardinal obligation), the liability of the Licensor shall be limited in amount to the damage that is foreseeable and typical for the contract according to the nature of the transaction in question here. In any case, our liability is limited to the amount of the license fee for a maximum of one year of the respective order or to 250,000.00 Euro per damage event, whichever is higher, provided that there is no intentional or grossly negligent breach of duty or damage resulting from injury to life, body or health.
(3) There shall be no further liability on the part of the Licensor. In particular, the Licensor shall not be liable for initial defects, unless the requirements of para. 1 are present.
(4) The above limitation of liability shall also apply to the personal liability of the Licensor’s employees, representatives and bodies.
§ 11 Data protection; secrecy
(1) The Parties shall comply with the applicable data protection provisions applicable to them in each case.
(2) If and to the extent that the Licensor has access to personal data of the Licensee within the scope of the provision of services, the Parties shall conclude a corresponding order processing agreement prior to the start of the processing and attach it to this Agreement as an annex. In this case, the Licensor shall process the relevant personal data solely in accordance with the provisions set forth therein and in accordance with the Licensee’s instructions.
(3) The parties undertake to maintain secrecy about all confidential information (including business secrets and offers of the Licensor) which they learn in connection with this Agreement and its performance and not to disclose, pass on or otherwise use such information to third parties. Confidential information in this context is information that is marked as confidential or whose confidentiality is evident from the circumstances, regardless of whether it has been communicated in written, electronic, embodied or oral form. The obligation to maintain secrecy shall not apply if a party is obliged to disclose the confidential information by law or on the basis of a final or non-appealable decision of an authority or court. The parties undertake to agree with all employees and subcontractors on a provision similar in content to the preceding paragraph, insofar as they have access to the Confidential Information.
(4) The obligation to maintain secrecy shall begin with the provision of a demo access or offer and shall also apply beyond the termination of the contractual relationship.
§ 12 Other agreements
(1) It is agreed that the law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) The exclusive place of jurisdiction and performance shall be Oldenburg.
Status May 2023