(1) These General Terms and Conditions (GTC) shall apply to the use of software applications of FINDIQ GmbH, Wilmerei 13, 32602 Vlotho, Germany, www.findiq.de for a limited period of time (hereinafter: "Contractor" or "FINDIQ") in the form of on-premise or as a web-based SaaS or cloud solution by the Customer (Customer and Contractor hereinafter jointly "Parties" and individually "Party"), both for current and future individual orders, unless expressly agreed otherwise by the Parties in writing or in text form.
The GTC shall apply exclusively to the business relationship between FINDIQ (entrepreneur) and the customer (also an entrepreneur). They expressly do not apply to legal transactions with a consumer (§ 13 of the German Civil Code).
Individual agreements between the contractor and the customer, in particular in the specific offer/order, shall take precedence over these GTC insofar as they deviate from them.
The content of such agreements shall be governed by a written contract or a written record.
(2) Insofar as third parties make statements that deviate from the agreements stipulated in the order and/or these GTC, these shall not be covered by the scope of the power of representation. They shall therefore not become part of the contract between the parties. Objections to third parties shall be excluded vis-à-vis the Contractor.
(3) Deviating or conflicting terms and conditions of the Customer or third parties shall not apply, even if the Contractor does not separately object to their validity in the individual case. Even if the Contractor refers to a letter which contains or refers to the terms and conditions of the Customer or a third party, this shall not constitute an agreement to the validity of those terms and conditions.
(4) Legally relevant declarations and notifications to be made by the Customer to the Contractor after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
(1) The performance description results from the order. Otherwise, the service description shall be derived from the offer.
(2) The contractual software shall be made available to the Purchaser as described in more detail in the order. The contractual software includes all data stored on the data carrier or transmitted online together with the program (in particular files and databases). All versions of the contract software, including updates and upgrades, which FINDIQ GmbH provides to the customer during the term of the contract shall be part of the subject matter of the contract. Upgrades within the meaning of this contract are advanced versions of the contract software that contain significant new functions compared to the previous version.
(3) The Purchaser shall receive a delivery copy of the Contract Software on a data carrier designated in the order or by download. The Purchaser shall be responsible for the installation of the Contract Software as well as updates and upgrades, unless otherwise agreed in the order.
(1) The performance description results from the order. Otherwise, the description of services shall be set out in the offer.
(2) The software will be operated by FINDIQ as a web-based SaaS or cloud solution. The customer will be enabled to use the software stored and running on the servers of FINDIQ or a service provider commissioned by FINDIQ for its own purposes via an Internet connection during the term of this agreement and to store and process its data with its help and to integrate elements of the software, such as login screens, into its own IT systems.
(3) FINDIQ shall make the software available to the customer for use in its current version at the router exit of the data center where the server containing the software is located ("transfer point"). The software, the computing power required for its use and the necessary storage and data processing space are provided by FINDIQ. However, FINDIQ shall not be responsible for establishing and maintaining the data connection between the customer's IT systems and the transfer point described.
(4) To the extent that the software runs exclusively on the servers of FINDIQ or of a service provider commissioned by FINDIQ, the customer does not require any rights to use the software under copyright law, nor does FINDIQ grant any such rights. However, for the term of the agreement, FINDIQ grants the customer the non-exclusive, non-transferable right, limited in time to the term of the license agreement, to load the user interface of the software for display on the screen into the main memory of the terminal equipment used for this purpose in accordance with the agreement and to make the resulting reproductions of the user interface and to post them on the customer's claims.
(1) FINDIQ draws the customer's attention to the fact that restrictions or impairments of the services provided may arise that are beyond FINDIQ's control. This includes, in particular, actions of third parties not acting on behalf of FINDIQ, technical conditions of the Internet beyond FINDIQ's control, and force majeure. The hardware, software and technical infrastructure used by the customer may also have an influence on FINDIQ's services. To the extent that such circumstances affect the availability or functionality of the services provided by FINDIQ, this shall not affect the contractual conformity of the services provided.
(2) The customer is obligated to notify the provider immediately and as precisely as possible of any functional failures, malfunctions or impairments of the software. If the Customer fails to provide this cooperation, § 536c BGB shall apply accordingly.
(1) A support case exists if the software does not fulfill the contractual functions according to the product description.
(2) If the Customer reports a support case, it shall provide as detailed a description as possible of the respective malfunction in order to enable the most efficient troubleshooting possible.
(3) The report shall be made by e-mail, by telephone or by teams and only during normal office hours (Monday to Friday from 08:00 to 18:00).
(1) The prices are based on the offer. All prices are exclusive of the respectively applicable value added tax. Insofar as ongoing services are owed, the value added tax rate applicable at the time the respective claim is due shall be decisive. The prices contained in the offers are non-binding. Services that go beyond the order shall be invoiced separately.
(2) FINDIQ's accruing invoices shall become due upon receipt by the customer and shall be paid without deductions within 14 calendar days to the account specified in the invoice.
(3) The monthly license fee may be paid in advance for the entire contract year (1st contract year = 24 months; from the 2nd contract year onwards, the license fee may be extended by a further 12 months), provided that payment is received in the account of FINDIQ GmbH within 14 days of the beginning of the respective contract year.
(4) FINDIQ reserves the right to adjust its prices in the future in order to meet the quality requirements of its customers. Price adjustments shall be announced at least 4 weeks in advance. If a customer is in a contract period that has already begun at the time of the price adjustment, the new price shall only apply to the next contract period. If the customer objects to a price adjustment, FINDIQ shall have the right to terminate the contract with the customer for cause as of the next possible termination date.
(5) Services shall generally be billed on a time and material basis.
(6) The customer may only offset claims of FINDIQ against counterclaims that have been legally established or are not disputed. The customer's rights of retention arising from other contractual relationships with FINDIQ shall be excluded in this contractual relationship.
(2) The open source software components used in the contractual software of the Contractor shall be presented in the service description or the software itself if a necessary obligation exists by conditions of the open source software.
(3) If the Contractor provides new versions, updates, upgrades, modifications or extensions of the Contract Software during the term or makes other changes with regard to the Software, the provisions of § 8 shall also apply to these, even if the modifications or extensions were ordered by the Customer and remunerated separately.
(4) The Purchaser shall not be entitled to any rights not expressly granted to the Purchaser. In particular, the Purchaser shall not be entitled to
a.) to use the contractual software beyond the scope of use agreed in these terms and conditions or to have it used by third parties;
b.) to make the contractual software available to third parties; unless such third parties use the contractual software exclusively on behalf of and for the Purchaser, or
c.) to process, reproduce or temporarily transfer the licensed software, in particular not to rent or lend it.
(5) The Contract Software may not be used for illegal purposes, whether in violation of applicable law, official requirements or third-party rights.
(6) The Purchaser is obligated to ensure compliance with the provisions of these Terms and Conditions.
(7) If the Customer violates the provisions of § 8, the Contractor may block the Customer's access to the Service after prior notification of the Customer in text form if the violation can be remedied. The block shall be lifted as soon as the reason for the block no longer exists. If the Customer continues to violate or repeatedly violates the provisions of § 8 despite notifying the Contractor accordingly, the Contractor may terminate the contract without notice unless the Customer is not responsible for such violations. The Contractor's right to claim damages shall remain unaffected.
(1) In principle, the statutory provisions on warranty in rental agreements shall apply. Sections 536b BGB (knowledge of the tenant of the defect upon conclusion of the contract or acceptance), 536c BGB (defects occurring during the rental period; notification of defects by the tenant) shall apply. However, the application of Section 536a (2) BGB (Tenant's right of self-remedy) is excluded. The application of Section 536a (1) of the German Civil Code (Landlord's liability for damages) shall also be excluded insofar as the standard provides for strict liability. Any claims for damages due to defective performance shall be governed by § 12 of these GTC.
(2) The Customer's right to terminate the contract due to failure to provide use in accordance with Section 543 (2) Sentence 1 No. 1 of the German Civil Code (BGB) shall be excluded unless the provision of use in accordance with the contract is deemed to have failed. Production of use in accordance with the contract shall be deemed to have failed at the earliest after the second unsuccessful attempt.
(3) Prior to the error message, the Purchaser shall perform an analysis of the system environment within the scope of its possibilities in order to ensure that the error is not attributable to system components which are not the subject matter of this contract.
(4) Insofar as the Contract Software is provided free of charge, the Contractor shall not assume any warranty and/or maintenance, except in the case of malice.
(1) The Contractor warrants that the updates, upgrades and new software versions provided comply with the service description. Performance descriptions shall not be deemed a warranty without a separate written agreement. Guarantees have not been assumed by the Contractor. The claims for defects are limited to the innovations of the update, upgrade or new version deliveries compared to the previous version status. This does not apply to consequential defects that are based on a defect that already existed before the update, upgrade or new version delivery.
(2) Changes to the IT infrastructure affecting the contractual software (e.g. replacement of or configuration changes to hardware at neuralgic points such as firewalls) and the system environment (e.g. upgrade of the server operating system to a new major version, but not the installation of security updates publicly distributed by the manufacturers) by the Customer must be agreed with the Contractor prior to implementation of the change. The Customer may instruct the Contractor to check the compatibility of the changes with the contractual software. If the change is made without commissioning the compatibility check or despite a negative test result and if errors occur as a result, the Contractor shall not assume any warranty liability for these. Furthermore, the Contractor shall not assume any warranty liability for errors caused by faulty data from third-party systems or errors in the third-party systems themselves.
(3) The Contractor shall initially fulfill its obligations to remedy defects by subsequent performance. Subsequent performance may also be effected by handing over or installing a new program version or a workaround. If the defect does not impair the functionality or only insignificantly, the Contractor shall be entitled to remedy the defect by delivering a new version or an update within the scope of its version, update and upgrade planning.
(4) If the rectification of a notified defect fails within a reasonable period of time and is also unsuccessful within a further reasonable grace period set by the Customer, or if the rectification of the defect is impossible, the Customer may demand a reasonable reduction of the remuneration.
(1) The Contractor or third party providers shall be entitled to interrupt the provision of the Service for maintenance work. The Contractor shall carry out planned and unplanned maintenance work in such a way that the use of the Service by the Customer is impaired as little as possible.
(2) Planned maintenance work shall be announced at least three calendar days in advance.
(3) The Contractor shall also be entitled to perform unscheduled maintenance of the Service for good cause, e.g. if the Service operation is endangered. This includes, in particular, emergency changes, e.g. the installation of security patches, which are necessary to secure and maintain operation and which require immediate implementation. The Customer shall be notified of such unscheduled maintenance work without delay and it shall be carried out in such a way that disruptions to the operating process are kept to a minimum.
(1) FINDIQ shall be liable in accordance with the statutory provisions
a.) in the event of intent or gross negligence,
b.) in accordance with the provisions of the Product Liability Act,
c.) to the extent of any warranty given by FINDIQ, and
d.) in the event of injury to life, body or health of a person.
(2) In the event of damage to property or financial loss caused by other negligence, the contractor and its vicarious agents shall only be liable in the event of a breach of a material contractual obligation, but the amount of such liability shall be limited to the damage foreseeable at the time of the conclusion of the contract and typical of the contract; material contractual obligations are those whose performance characterizes the contract and on which the customer may rely (hereinafter referred to as "cardinal obligation").
(3) Notwithstanding the provision in Section 12 (2), the Contractor's liability in the event of a slightly or normally negligent breach of a cardinal obligation proven by the Customer shall be limited in amount for all damage events falling within the same contractual year in accordance with the following provision:
a.) The maximum amount of liability per contract year shall be 100% of the remuneration paid by the Customer in the year of the damaging event, but not more than 100,000 Euros.
b.) If the maximum liability limit is not exhausted in a contract year, this does not increase the maximum liability limit for the following contract year. For the purposes of the foregoing, a contract year shall in each case be the first twelve months from the time of provision in accordance with the individual order and each subsequent twelve-month period.
(4) No-fault liability for damages for defects that were already present at the time of conclusion of the contract shall be excluded.
(5) Subject to the provisions of § 12, FINDIQ shall not be liable for the loss of customer data if the damage is due to the customer's failure to back up data and thereby ensure that lost customer data can be restored with reasonable effort, provided that a data backup was agreed.
(6) The above limitations of liability shall also apply in the event of fault on the part of a vicarious agent of FINDIQ and to the personal liability of the contractor's employees, representatives and bodies.
(7) To the extent that the software is provided free of charge, FINDIQ shall not be liable for any damage resulting from the use of the service, except in cases of gross negligence or intent. Liability under the Product Liability Act shall not be excluded even if the Software is provided free of charge.
(8) If unforeseeable events (such as force majeure, natural disasters, war, riots or similar events) significantly change the economic significance or the content of the delivery or have a significant effect on FINDIQ's operations, the contract shall be adapted appropriately in good faith. To the extent that this is not economically justifiable, FINDIQ shall have the right to rescind the contract. If FINDIQ intends to exercise this right of rescission, FINDIQ shall notify the customer thereof without undue delay after having become aware of the consequences of the event, even if an extension of the delivery period was initially agreed with the customer.
(9) If delivery is impossible, the customer shall be entitled to claim damages, unless FINDIQ is not responsible for the impossibility. However, the customer's claim for damages shall be limited to 10% of the value of that part of the delivery which cannot be put to the intended use due to the impossibility. This limitation shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health; this does not imply a change in the burden of proof to the detriment of the Customer. The right of the client to withdraw from the contract remains unaffected.
(1) Depending on the type of delivery, FINDIQ shall, as a technical service provider, store content and data for the customer, which the customer enters, stores and makes available for retrieval when using the software. The customer undertakes vis-à-vis FINDIQ not to enter any content and data that is punishable by law or otherwise illegal in absolute terms or in relation to individual third parties, and not to use any programs containing viruses or other malware in connection with the software. In particular, the Customer undertakes not to use the Software to offer illegal services or goods. With regard to personal data of himself and his users, the Customer is the responsible person pursuant to Article 4 No. 7 of the German Data Protection Regulation (DS-GVO) and must therefore always check whether the processing of such data via the use of the Software is covered by the relevant permissions.
(2) The Customer shall be solely responsible for all content and processed data used by it or its users, as well as for any legal positions required for this purpose. FINDIQ does not review the content used with the software.
(3) In this context, the Customer undertakes to indemnify the Provider against any liability and any costs, including possible and actual costs of legal proceedings, in the event that claims are asserted against FINDIQ by third parties, including employees of the Customer personally, as a result of alleged acts or omissions by the Customer. FINDIQ will notify the customer of the claim and, to the extent legally possible, give the customer the opportunity to defend itself against the asserted claim. At the same time, the customer shall immediately provide FINDIQ with all information available to it concerning the facts that are the subject of the claim.
(4) Any further claims for damages on the part of the customer shall remain unaffected.
(1) The Parties undertake to cooperate closely and efficiently, for which the personnel, organizational, professional and technical responsibility of the Customer is also essential. The Customer undertakes to provide, free of charge, all prerequisites necessary for the performance of the contractually agreed service. These prerequisites shall include, among other things, that the Principal shall provide free of charge
- identifies suitable machines and systems for which the software is to be used and provides the relevant data, information and documentation,
- provides further documents, documentation and information required for the performance of the service, in particular also about existing systems, processes, structures, which are to interact with the service to be performed,
- provides early and sufficient technically suitable personnel resources, as far as necessary for the provision of the service,
- enables an exchange of information with other companies or persons involved in the cooperation, such as end users or third party system providers, in order to integrate and adapt the software in the best possible way,
- grants insight into and access by the contractor to existing IT systems that are necessary for the development and use of the software,
- fulfills the (cooperation) obligations in due time, performs the (cooperation) actions in due time and submits declarations in due time.
(2) The Purchaser shall ensure permanent system management of the system environment in which the Contract Software runs. The Purchaser shall maintain its system environment (hardware and software) on an ongoing basis (the Purchaser should conclude suitable maintenance agreements for this purpose).
(3) The Customer shall be responsible for regularly backing up its data stock with the diligence of a prudent businessman, unless and to the extent that the Contractor has been expressly commissioned with specific data backup activities. The data backups shall be stored in such a way that the backed-up data can be restored at any time.
(4) If the Customer is in default with the performance of the actions for which it is responsible, the Contractor's performance obligation shall be suspended for the duration of the default, which cannot be performed without these actions or only at disproportionate additional expense. Additional expenses caused thereby shall be reimbursed to the Contractor by the Customer in addition to the agreed remuneration. A statutory right of termination of the Contractor shall remain unaffected.
(5) The Customer shall formally accept the software immediately after delivery. Acceptance shall be deemed to have taken place
- if the Customer has not yet commenced acceptance within four weeks after delivery,
- if the Principal uses the software handed over to him,
- if four weeks have elapsed after handover of the software without the Customer notifying us of any significant defects affecting the usability of the software.
(6) The Customer's contractual obligations shall generally include testing the delivered software as well as the updates and upgrades.
(1) FINDIQ shall remain the owner of all rights to the software provided to the customer, all rights to parts of this software or to software derived from it in whole or in part, including the respective associated hardware. This shall also apply if the customer modifies the software to the extent permitted by the contract or combines it with its own software or that of a third party. The Customer shall only receive a non-exclusive right of use to the software, which shall otherwise be governed by the scope of § 8.
(2) The customer shall not remove any existing markings, property right notices or proprietary notices of FINDIQ in the software, but shall include them in any copies made.
(3) The customer shall be liable to FINDIQ for any damage resulting from the customer's breach of the aforementioned obligations.
(1) The parties shall keep confidential all information to be treated as confidential which has come to their knowledge within the framework of the contractual relationship and shall only use such information vis-à-vis third parties - for whatever purpose - with the prior written consent of the respective other party. Information to be treated as confidential shall include information expressly designated as confidential by the party providing the information and such information whose confidentiality results from the circumstances of the transfer.
(2) The obligations under Section 17(1) shall not apply to such information or parts thereof for which the receiving party proves that it
a.) was known or generally accessible to it prior to the date of receipt or becomes known to it after the date of receipt by a third party lawfully and without an obligation of confidentiality;
b.) were known or generally available to the public before the date of receipt; or
c.) became known or generally available to the public after the date of receipt without any responsibility on the part of the party receiving the information.
(3) Public declarations of the Parties on cooperation shall be made only by prior mutual agreement. The Customer shall not be entitled to act as the Contractor's representative or trading partner. The Customer shall not be entitled to use information about an intended or existing contractual cooperation for reference or marketing purposes without the Contractor's prior consent.
(4) The obligations pursuant to Section 17 (1) shall continue to exist beyond the end of the contract for an indefinite period of time and for as long as an exceptional circumstance pursuant to Section 17 (2) is not proven.
(1) The term of the contract shall be specified in the respective individual order itself. Unless otherwise agreed therein, the contract for the respective order shall be concluded for a period of 24 months (1st contract year) and shall enter into force upon agreement on the order.
(2) Unless otherwise agreed, the order may be terminated by either party at any time in writing with 3 months' notice to the end of the respective contract year. If it is not terminated at the end of a contractual year, the order shall be extended by a further 12 months in each case. All other agreements of the contractual relationship in connection with the order and these GTC shall be deemed terminated at the same time.
(3) The right of the parties to terminate for good cause without notice shall remain unaffected. Good cause shall be deemed to exist if one party grossly violates the obligations expressly regulated in these GTC and the entire contractual relationship, and in particular if
a.) the other party has applied for the opening of insolvency proceedings or intends to do so within the next 14 calendar days;
b.) the opening of insolvency proceedings has been applied for by third parties;
c.) the other party has to stop payments due to payment difficulties;
d.) measures have been taken against the other party in temporal connection with payment difficulties to satisfy third-party creditor claims; or
e.) the other party has agreed to agreements for the satisfaction of third party creditor claims in connection with the payment difficulties.
(4) Good cause entitling the Contractor to terminate the contract without notice shall also be deemed to exist if the Customer is in default with the payment of the remuneration or a not insignificant part of the remuneration for two consecutive months or is in default with the payment of the remuneration in a period extending over more than two months in an amount equal to the remuneration for the last two months prior to the notice of termination. In the event of an extraordinary termination for which the Customer is responsible, the Contractor shall be entitled to demand immediate lump-sum damages in the amount of 50% of the monthly basic fee remaining until the expiry of the regular contract term. The Customer reserves the right to prove a lower damage, the Contractor the right to prove a higher damage.
(5) Upon termination of the contractual relationship, all relevant authorizations and registrations of the Customer shall automatically end at the same time.
(1) If FINDIQ amends its GTC during the term of the contractual relationship with a customer, the customer will be notified of the amendment by FINDIQ. If the customer does not object to the application of the new GTC within 2 weeks of such notification, the new GTC shall take effect. In the event of an objection, the old GTC shall continue to apply. In this case, however, FINDIQ shall have the right to terminate the contract with 4 weeks' notice and, in the case of a contract period that has already commenced, to credit the remuneration on a pro rata basis.
(2) FINDIQ reserves the right to modify, reduce the functional scope of, or discontinue its services and the documents relating thereto at its own reasonable discretion, taking into account the interests of its customers. There shall be no entitlement to the provision of services with certain functionalities for certain operating systems (e.g. Windows, Mac OS), end devices or browsers. FINDIQ will inform its customers of such changes and settings in text form no later than 4 weeks before they take effect. Customers have the right to object to the change. If the customer objects to the change, both parties have the right to terminate the contract without notice.
(1) The contractual relationship shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) Place of performance as well as exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is Vlotho.
(3) Should individual provisions of these GTC be invalid, this shall not affect the validity of the remaining provisions. The ineffective provision shall be replaced by the contracting parties by mutual agreement by a legally effective provision which comes closest to the economic sense and purpose of the ineffective provision. The above provision shall apply mutatis mutandis in the event of loopholes.