General Terms and Conditions - Use of the PIM Tool
§ 1 Application of the General Terms and Conditions
- The general terms and conditions accepted by both contracting parties govern the terms and conditions between cobby GmbH & Co. KG, represented by Mr. Dietrich Janzen, Kutenhauser Str. 134, 32425 Minden, hereinafter referred to as "Contractor" and the client, hereinafter referred to as "Client", for the use of the PIM tool, hereinafter referred to as "Tool" of the Contractor by the Client, unless otherwise agreed in writing between the contracting parties.
- The Contractor shall provide the Client with the tool as a service for the Client's use via Internet. The object of the order is the provision of an agreed service (service contract) and not the achievement of a specific result (no contract for work). The commissioned services shall be deemed to have been provided when the required services have been carried out and any questions that may arise have been dealt with. The Client undertakes in their own interest to provide all relevant information truthfully and completely.
- These general terms and conditions only apply to companies in accordance with § 14 BGB and not to consumers in accordance with § 13 BGB.
- These terms and conditions apply to all current and future business relationships between the Contractor and the Client.
- Deviating, conflicting or supplementary general terms and conditions shall not become part of the contract, even if known, unless their validity is expressly agreed to in writing by the Contractor.
§ 2 Conclusion of Contract
- The contract is concluded when the Client selects the desired package on the Contractor's website and completes the payment.
- The Contractor is entitled to refuse to conclude a contract without stating reasons, e.g. if the Contractor cannot or may not provide the service due to its specialization or for legal reasons.
§ 3 Content and Execution of the Contract
- The Contractor shall provide their services to the Client in such a way that it applies its knowledge and skills in the above-mentioned areas. The Contractor shall make the agreed tool available to the Client for use within the framework of a contract of use. The tool is the property of the Contractor and is not sold, but merely leased.
- In order to access and use the tool, the Contractor shall provide the Client with the necessary access data required to access the tool.
- The Client undertakes to use the information materials, reports and analyses created by the Contractor as part of the use of the tool only for its own purposes. The Client shall receive the exclusive and non-transferable right to use them.
- All of the Contractor's documents are protected by copyright. This applies to both the content of the Contractor's website and other documents. The Client is not entitled to reproduce, distribute or publicly reproduce such documents. The Client is also not entitled to make image, film or sound recordings of the use of the tool without the express permission of the Contractor.
- Reproduction, revision, translation of the tool and conversion of the object code into the source code for other purposes is prohibited.
- The Client is responsible for providing a correct email address and for regularly checking their emails.
- The Contractor shall provide the Client with the latest version of the agreed tool and shall ensure that the tool is maintained and updated. The Contractor is entitled to update and expand the tool at any time in order to improve the performance of the tool or to adapt it to the needs of the market.
- The Contractor does not have to provide and maintain the tool itself. It is entitled to outsource the performance of the service to third parties, e.g. subcontractors, at its own discretion.
- The Client is obliged to take suitable measures to protect the tool from access by unauthorized third parties, in particular to store all copies of the tool in a protected location.
- The Contractor shall set up a support service for inquiries about the functions of the tool. Inquiries can be made via the support hotline specified on the Contractor's website at the times specified there or by email. Inquiries are processed in the order in which they are received.
§ 4 Right of Use and Obligations of the Client
- The Contractor grants the Client a non-exclusive, non-sublicensable and non-transferable right to use the tool for its own business purposes during the term of the contract.
- The tool is not physically handed over to the Client.
- Account sharing is strictly prohibited and the tool may only be used by those users who are explicitly registered in the Client's account.
- The Contractor reserves the right to provide the Client with preliminary services as part of an offer at the Client's request. These preliminary services may include, for example, the preparation of an individual service offer or the provision of specific information. Even if a contract is not concluded, the Contractor reserves the right to invoice the Client for the costs incurred for these preliminary services. Invoices shall be issued in accordance with the Contractor's agreed prices or rates for these preliminary services. The Client agrees to pay the corresponding invoices for the preliminary services rendered, regardless of whether or not a contract is concluded between the parties.
- The Client may only use the tool within the scope of their own business activities by their own staff. The Client is not permitted to use the tool for any other purpose.
- The Client must protect and store the access data provided to them against access by third parties in accordance with the state of the art. The Client must ensure that the data is only used within the contractually agreed scope. Unauthorized access must be reported to the Contractor immediately.
- The Client warrants that the content and data stored on the Contractor's servers and its use and provision by the Contractor do not violate applicable law, official orders, third-party rights or agreements with third parties. The Client shall indemnify the Contractor against claims asserted by third parties due to a breach of this clause upon first request.
§ 5 Payment
- The prices for the use of the tool are indicated on the Contractor's website. Payments shall be made exclusively via the payment service provider offered. Bank transfers are not permitted. Payments are due within 7 days. If the Client has not made their payments within 7 days, the Contractor reserves the right to deactivate or block the Client's access and subscription as well as access to the Tool.
- The Contractor can change the Client's payment frequency. For example, Clients who currently pay annually may be changed to a monthly payment. Clients will be notified of such changes in good time and the changed payment terms will apply from the date specified in the notification.
- To the extent permitted by law, the Contractor reserves the right to automatically switch Clients to the subscription model that best suits them, based on their usage behavior and the company's current offers. Clients will be notified of such a switch by email and have the option to decline the switch and remain on their current subscription. If required by law, the client will be offered a special termination option in the event of such a change.
- All prices on the website or in the Contractor's offer are listed as net prices plus the applicable statutory value added tax.
- The Client shall be in default if the payment deadline stated on the invoice or the agreed payment deadline is not met. In the event of default, the Contractor shall be entitled to charge default interest, reminder fees and the default lump sum in accordance with §§ 288 I, II BGB. Furthermore, the Contractor reserves the right to suspend services to be provided regularly in the event of default without losing the right to the agreed consideration from the Client.
- If the Client does not pay the invoice amount by the due date, the Contractor shall send the Client a request for payment. If the Client fails to pay even after receiving this payment request, it shall be obliged to pay reminder fees of EUR 5.00 net to the Contractor for each further payment request.
- If the collection of invoice amounts by direct debit has been agreed between the Client and the Contractor and the Contractor incurs charges due to a returned direct debit because the Client's account does not have sufficient funds, the Client shall be obliged to reimburse the Contractor for these returned direct debit charges.
§ 6 Term and Termination
- The contract term depends on the subscription model selected. The contract is automatically renewed, but can be terminated at any time, whereby the termination only becomes effective at the end of the current subscription period.
- Ordinary termination of the contract must be made in writing to the contractual partner at least one month before the end of the respective contract term.
- The right to extraordinary termination remains unaffected.
- If the contractual relationship is not terminated up to one month before the end of the respective term, it is always extended by the original term.
- After the end of the regular term, the notice period is one month until the end of the extended term. Notice of termination must also be given in writing.
§ 7 Property Rights
- All rights to the tool, in particular all rights of use under copyright law, all design rights, all trademark and labeling rights and other intellectual property rights (including all stages of development), are the exclusive and unrestricted property of the Contractor.
- The Client hereby transfers to the Contractor the exclusive rights of use, unrestricted in terms of time, space and content, at the time the results are created.
- The Contractor shall permanently retain the rights to its logo and trademark. The Contractor's brand and logo may not be used by the Client without the Contractor's consent.
- The intellectual property rights, copyrights and ancillary copyrights to project-specific adaptations and developments shall remain with the Contractor, unless expressly agreed otherwise. The Client only acquires the right to use them to the agreed extent.
- If the contractual use of the work results created by the Contractor infringes third-party property rights, the Client shall indemnify the Contractor against legally established third-party claims based on existing third-party property rights insofar as the work results are based on specifications or materials provided by the Client. The Client shall inform the Contractor immediately in writing of any claims asserted.
§ 8 Confidentiality
- The parties shall treat as confidential all business secrets and other information of the other party marked as confidential (hereinafter referred to as "confidential information"). The receiving party (hereinafter referred to as "Recipient") shall treat the confidential information with the same care as they treat their own confidential information of the same sensitivity, but at least with the care of a prudent businessman.
- Use of the confidential information is limited to use in connection with this contract. Confidential information may not be disclosed to third parties without the prior consent of the disclosing party. Consent must be given in writing. No third parties within the meaning of this paragraph are affiliated companies of the parties and consultants who are obliged by law to maintain confidentiality.
- To the extent required by applicable legal obligations, the Recipient is also entitled to disclose and pass on confidential information. To the extent permitted by law, the Recipient shall inform the disclosing party before disclosing confidential information.
- The parties shall impose on their employees or third parties to whom they disclose confidential information a confidential treatment of this information within the framework of the respective subcontractor and employment relationships with the proviso that the obligation to maintain confidentiality shall continue beyond the end of the respective subcontractor or employment relationship, unless a corresponding general obligation to maintain confidentiality already exists.
- The obligation to maintain confidentiality does not apply to information that
- were already generally known when the contract was concluded or subsequently become generally known without breach of the confidentiality obligations contained in this contract;
- developed by the Recipient independently of this agreement; or
- the Recipient has received from third parties or outside this agreement from the disclosing party without an obligation of confidentiality. The burden of proof for the existence of the exceptions mentioned in this paragraph shall lie with the party invoking the exception.
- Upon termination of this contract, the parties shall surrender or delete confidential information in their possession to the other party at the request of that party. This does not apply to confidential information for which there is a longer statutory retention obligation and data backups as part of normal backup processes.
- The Contractor shall be entitled to use empirical knowledge, such as ideas, concepts, methods and know-how, which is developed or disclosed in the course of the performance of the contract and which is stored in the memory of the persons employed to provide the service. This shall not apply if this infringes the Client's industrial property rights or copyrights. The obligation to maintain confidentiality remains unaffected by this.
§ 9 Liability and Warranty
- The Contractor shall be liable to the Client in all cases of contractual and non-contractual liability in the event of intent and gross negligence in accordance with the statutory provisions for damages or reimbursement of futile expenses.
- In other cases, the Contractor shall only be liable - unless otherwise regulated in para. 3 - in the event of a breach of a contractual obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the Client may regularly rely (so-called cardinal obligation), limited to compensation for foreseeable and typical damage. In all other cases, the Contractor's liability is excluded subject to the provision in paragraph 3.
- Liability for damages resulting from injury to life, limb or health and under the Product Liability Act remains unaffected by the above limitations and exclusions of liability.
- The Contractor protects their Clients as best as they can against cybercrime. Unfortunately, this cannot always be prevented. The exclusion of liability in paragraphs 1 - 3 shall also apply, with the aforementioned exceptions, to damages incurred by the Client as a result of such cybercrime.
- With the exception of the previous paragraphs, the Contractor shall not be liable for damages caused by the services provided, unless they are based on gross negligence or intent. In this context, the Contractor assumes no liability for loss of profit, loss of data or other indirect damage.
- The Contractor guarantees the functionality of the tool in accordance with the specifications provided. Liability for problems resulting from individual adaptations or modifications is excluded.
- With regard to the granting of the use of the tool and its provision, the warranty provisions of tenancy law (Sections 535 ff. BGB) shall apply. The Client must notify the Contractor of any defects without delay and the warranty for only insignificant reductions in the suitability of the service is excluded. Strict liability in accordance with § 536a para. 1 BGB for defects that already existed at the time the contract was concluded is excluded.
§ 10 Data Protection
- The Client expressly agrees to the electronic data processing of their personal data within the framework of the following regulations. Customer data will be treated with absolute confidentiality. The data provided by the Client will be used exclusively for the professional execution of the service. The data will not be passed on to third parties. This does not apply to information that is publicly accessible or becomes publicly accessible without the unauthorized intervention or omission of the contracting parties or must be made accessible by court order or by law. In the case of support assistance for problems of the Client, it may be necessary to access data records of the Client. This access is limited to the period of the respective support measure.
- The Contractor undertakes to maintain secrecy about all confidential information (including business secrets) that it learns in connection with this contract and its execution and not to disclose it to third parties, pass it on or use it in any other way. Confidential information is information that is marked as confidential or whose confidentiality is evident from the circumstances, irrespective of whether it has been communicated in written, electronic, embodied or oral form. The confidentiality obligation shall not apply if the provider is obliged to disclose the confidential information by law or on the basis of an official or court decision that has the force of res judicata. The Contractor undertakes to agree with all employees and subcontractors a regulation with the same content as the preceding paragraph.
- The parties shall comply with the applicable data protection provisions applicable to them. The separate data protection provisions on the provider's homepage under the following link apply: https://www.cobby.io/en/privacy-policy § 11 Right of Withdrawal The right of withdrawal is excluded, as the Client is always a company. § 12 Final Provisions
- Should individual provisions of the respective service contract be or become invalid or void, this shall not affect the validity of the service contract as a whole. Rather, the invalid or void provision shall be replaced by a provision that comes closest to the purpose of the contract or the parties' intentions.
- The law of the Federal Republic of Germany shall apply.
- Amendments and additions to the service contract must be made in writing to be effective. Verbal collateral agreements do not exist.
- The place of jurisdiction for all disputes arising from the contractual relationship shall be the Contractor's registered office.
- The Contractor reserves the right to amend the terms and conditions of this contract if this is acceptable to the Client. Any changes will be published on the service and the Client will be notified of these changes. Unless the Client objects in writing within 14 days of notification, the proposed changes will take effect automatically. The Client has the right to object to the changes, but this may result in termination of the agreement if the changes are of a material nature and the Client does not agree to them.