General Terms and Conditions – Use of the PIM Tool

§ 1 Application of General Terms and Conditions

• The General Terms and Conditions accepted by both contracting parties govern the business 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 provides the Client with access to the Tool as a service for the Client's use via the internet. The subject of the contract is the provision of an agreed service (service contract) and not the achievement of a specific result (not a contract for work). The commissioned services are deemed rendered when the required services have been performed and any questions that arise have been addressed. The Client undertakes, in their own interest, to provide all relevant information truthfully and completely.

• These General Terms and Conditions apply only to businesses pursuant to § 14 BGB (German Civil Code) and not to consumers pursuant to § 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 payment.

• The Contractor is entitled to refuse the conclusion of 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 Performance of the Contract

• The Contractor provides its services to the Client by applying its knowledge and skills in the above-mentioned areas. The Contractor provides the Client with the agreed Tool for use under a usage agreement. The Tool is the property of the Contractor and is not sold but merely rented.

• For access to and use of the Tool, the Contractor will transmit the necessary access data to the Client required to access the Tool.

• The Client undertakes to use the information materials, reports, and analyses created by the Contractor in the course of using the Tool only for its own purposes. The Client receives the exclusive and non-transferable right of use.

• All documents of the Contractor are protected by copyright. This applies to both content on 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 audio recordings of the use of the Tool without the express permission of the Contractor.

• The reproduction, modification, translation of the Tool, and conversion of the object code to source code for other purposes is prohibited.

• The Client is responsible for providing a correct email address and regularly retrieving their emails.

• The Contractor provides the Client with the agreed Tool in its current version and ensures the maintenance and upkeep of the Tool. The Contractor is entitled to update and expand the Tool at any time to improve the performance of the Tool or to adapt to market needs.

• The Contractor is not required to provide and maintain the Tool itself. It is entitled, at its own discretion, to delegate the performance of the service to third parties, e.g., subcontractors.

• The Client is obliged to protect the Tool from access by unauthorized third parties through appropriate measures, in particular to keep all copies of the Tool in a secure location.

• The Contractor sets up a support service for inquiries regarding Tool functions. Inquiries can be made via the support hotline listed on the Contractor's website during the times indicated there or by email.

§ 4 Right of Use and Client Obligations

• The Contractor grants the Client a simple, non-sublicensable, and non-transferable right to use the Tool during the term of the contract for the Client's own business purposes.

• Physical provision of the Tool to the Client does not take place.

• Account sharing is strictly prohibited, and the Tool may only be used by those users who are expressly registered in your account.

• The Contractor reserves the right to provide advance services to the Client within the scope of an offer at the Client's request. These advance services may include, for example, the creation 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 advance services. Invoicing is carried out in accordance with the Contractor's agreed prices or tariffs for these advance services. The Client agrees to settle the corresponding invoices for the advance services rendered, regardless of whether a contract is concluded between the parties or not.

• The Client may only use the Tool within the scope of its own business activities through its own personnel. The Client is not permitted to use the Tool beyond this scope.

• The Client must protect and store the access data transmitted to it in accordance with the state of the art against access by third parties. The Client must ensure that use only occurs 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 on first demand against claims asserted by third parties due to a violation of this provision.

§ 5 Payment

• The prices for the use of the Tool are listed on the Contractor's website. Payments are made exclusively through the offered payment service provider. Bank transfers are not permitted. Payments are due within 7 days. Should the Client fail to make 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 may change the Client's payment cycle. For example, Clients who currently pay annually may be switched to monthly payments. Clients will be notified of such changes in a timely manner, and the changed payment terms will apply from the date specified in the notification.

• The Contractor reserves the right, within the legally permissible framework, to automatically switch Clients to the subscription model best suited for them, based on their usage behavior and the company's current offerings. Clients will be notified of such a switch by email and will have the option to decline this switch and remain with their current subscription. If legally required, the Client will be offered a special termination option in the event of such a switch.

• All prices on the Contractor's website or in the Contractor's offer are listed as net prices plus the applicable statutory value-added tax.

• The Client is 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 is entitled to charge default interest, dunning fees, and the default flat rate in accordance with §§ 288 I, II BGB. Furthermore, the Contractor reserves the right to suspend regularly rendered services in the event of default without losing the claim to the agreed consideration from the Client.

• If the Client does not pay the invoice amount by the due date, the Contractor will send a payment request to the Client. Should the Client still fail to pay after receiving this payment request, the Client is obliged to pay dunning fees of €5.00 net to the Contractor for each additional 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 chargeback because the Client's account does not have sufficient funds, the Client is obliged to reimburse the Contractor for these chargeback fees.

§ 6 Term and Termination

• The contract term is based on the selected subscription model. The contract is automatically renewed but can be terminated at any time, with termination only becoming effective at the end of the current subscription period.

• Ordinary termination of the contract must be made in writing to the contractual partner no later than the last day before the start of the new contract term.

• The right to extraordinary termination remains unaffected.

• If the contractual relationship is not terminated by the last day before the start of the new contract term, it is automatically extended by the original term.

• After the end of the regular term, the contract can be terminated at any time by the last day before the start of the new contract term. Termination must also be made in writing.

§ 7 Protective Rights

• All rights to the Tool, in particular all copyright usage rights, all design rights, all trademark and identification rights, and other intellectual property rights (including all development stages), belong exclusively and without restriction to the Contractor.

• The Client hereby transfers to the Contractor, already at the time of the creation of the results, the exclusive, temporally, spatially, and substantively unrestricted usage rights.

• The Contractor permanently retains the right to its logo and trademark. The Contractor's trademark and logo may not be used by the Client without the Contractor's consent.

• The intellectual property, copyright, and related rights to project-specific customizations and developments 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 protective rights, the Client shall indemnify the Contractor against judicially binding claims of third parties based on existing third-party protective rights, insofar as the work results are based on specifications or contributions by the Client. The Client shall immediately notify the Contractor in writing of any claims asserted.

§ 8 Confidentiality

• The parties shall treat all trade secrets and other information designated as confidential of the respective other party (hereinafter "confidential information") as confidential. The receiving party ("Recipient") shall treat the confidential information with the same care as it treats its own confidential information of the same sensitivity, but at least with the care of a prudent businessperson.

• Use of confidential information is limited to use in connection with this contract. Without prior consent of the disclosing party, disclosure of confidential information to third parties is not permitted. Consents must be in writing. Affiliated companies of the parties and advisors who are legally bound to confidentiality are not considered third parties within the meaning of this paragraph.

• To the extent required by applicable legal obligations, the Recipient is also entitled to disclose and pass on confidential information. If legally permissible, the Recipient shall inform the disclosing party before disclosing confidential information.

• The parties shall impose confidential treatment of this information on their employees or third parties to whom they disclose confidential information within the scope of the respective subcontractor and employment relationships, with the stipulation that the confidentiality obligation shall continue beyond the end of the respective subcontractor or employment relationship, unless a corresponding general obligation to maintain confidentiality already exists.

• Excluded from the obligation of confidentiality is information that:

  • was already publicly known at the time of the conclusion of the contract or subsequently becomes publicly known without violation of the confidentiality obligations contained in this contract;

  • the Recipient has developed independently of this contract; or

  • the Recipient has received from third parties or outside this contract from the disclosing party without a confidentiality obligation. The burden of proof for the existence of the exceptions mentioned in this paragraph lies with the party invoking the exception.

• Upon termination of this contract, the parties shall return or delete confidential information of the respective other party in their possession upon request of that party. Excluded from this are confidential information for which a longer statutory retention obligation exists, as well as data backups within the scope of customary backup processes.

• The Contractor is entitled to use experiential knowledge, such as ideas, concepts, methods, and know-how, that is developed or disclosed in the course of contract performance and stored in the memory of the persons deployed for service provision. This does not apply insofar as this would violate industrial property rights or copyrights of the Client. The obligation to maintain confidentiality remains unaffected.

§ 9 Liability and Warranty

• The Contractor is liable to the Client in all cases of contractual and non-contractual liability for intent and gross negligence in accordance with the statutory provisions for damages or reimbursement of futile expenses.

• In other cases, the Contractor – unless otherwise regulated in para. 3 – is only liable for breach of a contractual obligation whose fulfillment makes the proper performance of the contract possible in the first place and on whose compliance the Client may regularly rely (so-called cardinal obligation), limited to compensation for foreseeable and typical damage. In all other cases, our liability is excluded subject to the regulation in para. 3.

• Liability for damages arising from injury to life, body, or health and under the Product Liability Act remains unaffected by the above limitations and exclusions of liability.

• The Contractor protects its Clients as best as possible against cybercrime. Unfortunately, this cannot always be prevented. For damages incurred by the Client due to such cybercrime, the liability exclusion of paras. 1-3 with the stated exceptions also applies.

• The Contractor, with the exception of the preceding paragraphs, is not liable for damages caused by the services rendered, unless they are due to gross negligence or intent. In this context, the Contractor assumes no liability in particular for lost profits, data loss, or other indirect damages.

• The Contractor guarantees the functionality of the Tool in accordance with the provided specifications. Liability for problems arising from individual customizations or modifications is excluded.

• With regard to the granting of use of the Tool and the provision of services, the warranty provisions of tenancy law (§§ 535 ff. BGB) apply. The Client must report any defects to the Contractor immediately. The warranty for only insignificant reductions in the suitability of the service is excluded. The strict liability pursuant to § 536a para. 1 BGB for defects that already existed at the time of contract conclusion is excluded.

§ 10 Data Protection

• The Client expressly consents to the electronic processing of their personal data within the framework of the following provisions. Customer data is treated absolutely confidentially. The Client's data is used exclusively for the professional execution of the service. Data is not disclosed to third parties. This does not apply to information that is publicly accessible or becomes publicly accessible without unauthorized action or omission of the contracting parties or must be made accessible by court order or by law. In the case of support assistance for Client problems, it may be necessary to access the Client's data records. This access is limited to the period of the respective support measure.

• The Contractor undertakes to maintain silence about all confidential information (including trade secrets) that it learns in connection with this contract and its execution, and not to disclose, pass on, or otherwise use it to third parties. Confidential information is information that is marked as confidential or whose confidentiality is apparent from the circumstances, regardless of whether it was communicated in written, electronic, physical, or oral form. The confidentiality obligation does not apply insofar as the provider is obliged to disclose the confidential information by law or by a final and binding authority or court decision. The Contractor undertakes to agree on a provision identical in content to the preceding paragraph with all employees and subcontractors.

• The parties will comply with the applicable data protection regulations applicable to them. The separate data protection provisions on the provider's homepage apply under the following link: https://www.cobby.io/en/privacy-policy

§ 11 Right of Withdrawal

A right of withdrawal is excluded, as the Client is always a business.

§ 12 Final Provisions

• Should individual provisions of the respective service contract be or become invalid or void, the validity of the service contract as a whole shall not be affected. The invalid or void provision shall rather be replaced by a provision that comes closest to the purpose of the contract or the will of the parties through free interpretation.

• The law of the Federal Republic of Germany applies.

• Amendments and supplements to the service contract require written form to be effective. No oral side agreements exist.

• The place of jurisdiction for all disputes arising from the contractual relationship is the registered office of the Contractor.

• The Contractor reserves the right to change the terms of service of this contract, provided this is acceptable to the Client. All changes will be published in the service, and the Client will be notified of these changes. If the Client does not object in writing within 14 days of notification, the proposed changes will automatically take effect. The Client has the right to object to the changes; however, this may lead to termination of the contract if the changes are material in nature and the Client does not consent.