Terms and Conditions of Service [OLD]

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Terms and Conditions of Service

between

Customer represented as stated above

(,‚Customer” )

and

ValueMiner GmbH

Innere Wiener Str. 11

81667 München

(„ValueMiner“)

 

ValueMiner GmbH (“ValueMiner” or “Provider”) provides ValueMiner.eu and its related services (“Service”) and/or any other related Services designed and distributed by us subject to the terms and conditions (“Terms of Service”) set forth below.

1.      Subject matter of the Agreement

The subject-matter of this Agreement is the provision of a software application (“Application”) by way of a SaaS (Software as a Service) model for use by the Customer and its Users in return for payment of the agreed remuneration. Further, Provider will allocate storage space to the Customer on the Provider’s servers.

2.      Provision of Software Services

(1)         From the date mentioned in the Offer, Provider shall make available to the Customer the latest version of the Application for internal use as stipulated in this Agreement. The Customer’s access to the Application shall be online and browser-based via ValueMiner.eu.
(2)         The current functional scope of the Application can be found in its current description of services on the Provider’s website at www.valueminer.eu (“Description of Services”)
(3)         The Provider continuously develops the Application and will improve it through ongoing updates and upgrades.

3.      Usage Rights

(1)         During the term of the Agreement and subject to the timely payment of all Fees, Provider grants to Customer a contractual, non-exclusive and non-transferable right to remotely access and use the Application that is located on the Provider’s servers in accordance with the terms of this Agreement for the length of the Term solely for Customer’s internal business purposes.
(2)         Use of the Application is limited to employees of Customer for whom Provider has received notification, such notification provided when requesting passwords for such users. Use of the Application is further limited to the number of users designated in the Order Form.
(3)         Except as otherwise determined in this Agreement, no claim or implied license or right of any kind is granted to Customer, regarding the Application, Documentation and/or Data.

4.      Storage Space

(1)         Provider provides the Customer with a defined storage space on a server for storing his data. Unless otherwise provided for in the Order, Customer may store contents on this server up to of 2 GB according to the technical specification, which is attached in Appendix 1 to this Agreement. If the storage space is no longer sufficient to store the data, Provider will inform the Customer accordingly. Subject to availability, Customer may then order additional storage space.
(2)         Customer shall not assign its storage space to a third party (in whole or in parts, free of charge or for commercial purposes).
(3)         Customer undertakes not to upload any content to Provider’s servers that infringes any third party rights.
(4)         Provider reserves the right to remove from the Provider Server(s) any files that may damage the Application or any files that are in violation of Section 4.3, provided that Provider has given Customer prior notice of two (2) Business Days before removing such files.  The removed files will be placed in a temporary quarantined area until both parties mutually agree how to handle the files.
(5)         Provider is obliged to take appropriate precautions against data loss and to prevent unauthorized access by third parties to the Customer’s data.

5.      Customer Accounts – User Accounts

(1)         Users will be given the opportunity to register for Services via an online registration form to create a User Account that may allow them to participate in the Service(s) provided by ValueMiner.eu. By registering with the Provider, Users represent and warrant that all information they provide on the registration form is current, complete and accurate to the best of Users’ knowledge. Users agree to maintain and promptly update their registration information on the website so that it remains current, complete and accurate.
(2)         Customer will be given all applicable passwords to use in connection with the Application and will ensure that each user is given their own individual user ID and password, which may not be shared with another individual for any reason. Customer will be responsible for changing such passwords immediately upon first use of the Application. Customer is entirely responsible for maintaining the confidentiality of such passwords and of its accounts. Customer is responsible for all access to and use of the Application through Customer’s passwords.
(3)         Provider is not responsible for any unauthorized access and/or use by any third party who independently gains access to Customer’s instance of the Application and/or related information, provided that such access is not caused or contributed to by Provider. Customer will notify Provider promptly of any unauthorized use of any user accounts or of any other breach of security occurring as a result of any activities of any of Customer’s end-users or of any vulnerabilities that Customer believes are contained in or caused by the Application in a way that Provider may take or recommend appropriate remedial measures.  Provider will have no liability for any loss or damage arising from Customer’s failure to comply with the provisions of this Section 5.
(4)         Provider and Customer agree to maintain and update industry standard anti-virus programs and other appropriate security measures within their respective computer systems.

6.     Support

(1)         Provider offers free of charge support via its webform and email (via info@valueminer.eu). Webform and email responses are provided during Provider’s regular business hours. Adherence to specific response times is not part of the Service.
(2)         Support beyond the above is not included in a regular subscription fee.

7.      Consulting Services

(1)         Customer may request additional services. In such a case, the Parties will sign an Order Form/Statement of Work in which the offered services and the fees are described.
(2)         Hours purchased as part of a consulting package are nonrefundable and expire as set forth in the Statement of Work, but in any case no later than one hundred and eighty (180) days from the date of purchase.

8.      Quality of the Service

(1)         During the Term of this Agreement, Provider warrants that the Application will materially conform to the specifications as set forth in the Description of Services. If Provider receives notice that the Application does not perform as warranted, Provider will, at its option, undertake to correct errors or replace such portions of the Application free of charge with software that performs as warranted hereunder. The customer’s right to claim damages in the event that a defect within the meaning of § 536 BGB (§ 536a BGB) existed at the time when the contract was entered into shall be excluded.
(2)         Provider will not warrant or even guarantee that the Application will be suitable – beyond the purposes determined in the Order form or any Statement of Work- for all purposes pursued by the Customer. Also, Provider cannot guarantee that the Application will always perform without defects or problems. Further, it is an integral part of the Services that they may be further developed and changed during the Term; new functionalities may be are added and others be omitted, as the case may be.
(3)         The availability of the Application is 95 % per year during regular business hours. Maintenance work that is announced at least two days in advance or that takes place during the usual maintenance windows does not affect availability.
(4)         Other than as expressly set forth in this Agreement, Provider makes no guarantees, including guarantees as to quality or sustainability.

9.      Customer’s Obligations

(1)         The Customer undertakes to create the conditions for exchanging data with the Provider using a suitable terminal device. Details are set out in the Technical Specifications.
(2)         Customer undertakes not to misuse the Provider’s services. In particular, the Customer shall not transmit or make accessible any content that violates copyrights, impairs personal rights or constitutes criminal offences. In the event of a material breach of obligations, Customer shall indemnify the Provider against any claims by third parties, including the costs incurred as a result of such claims.
(3)         The Customer is obliged to check his data and information for viruses or other harmful components before entering them.
(4)         The Customer shall obtain the necessary consent of any individual insofar as personal data is collected, processed, or used in the course of said persons’ use of the Application and no legislation permitting such collection, processing, or use without the need to obtain consent applies to the case in question.

10. Fees and Payment Terms

(1)         Customer will pay to Provider all fees due to Provider as set forth in the Order Form in Euros (collectively “Fees”).
(2)         Customer will reimburse Provider for all expenses, including travel-related expenses reasonably incurred in rendering services to fulfil this Agreement and further detailed in the Order Form or any Statement of Work (“Expenses”), especially for Consulting Services performed on-site.
(3)         Unless otherwise set forth in this Agreement, all Fees and Expenses will be due immediately upon receipt of the invoice. A late fee may be charged by Provider on Fees and Expenses not paid to Provider by Customer within thirty (30) days after receipt of the invoice for same in the amount of 10 % percentage points above the base interest rate (“Basiszinssatz“) p.a. Customer will be at liberty to prove that Provider incurred a lower loss. Provider’s right to demand the statutory default interest or to prove to the Customer that it has incurred a greater loss will also remain unaffected.
(4)         The Fees and other Expenses do not include any applicable taxes (including value added tax) and all applicable export and import fees, customs duties and similar charges (collectively “Taxes and Duties”), and Customer will be responsible for the payment of all such Taxes and Duties.
(5)         Customer may only offset against claims which are not disputed by Provider or which have become final and absolute.

11. Price Changes

(1)         Provider may adjust the Fees agreed with the Customer at its reasonable discretion in accordance with the following provisions if the total costs attributable to the subscription change due to circumstances that occur after the conclusion of the contract, were not foreseeable and are not at Provider’s discretion. The total costs attributable to the subscription shall be composed as follows: Fees for Licenses, Fees for Technical Services, Customer service and other cost of sales, general administrative expenses.
(2)         Provider may increase the subscription fee if and to the extent that the total costs attributable to the subscription have increased. Provider may increase the Fees by no more than the amount of the total cost increase and no more than once within a calendar year. Provider shall inform the Customer of a price increase at least six weeks before it takes effect. Within the scope of the notification of the price increase, Provider shall draw the Customer’s attention in particular to any right of termination and the period of notice as well as to the consequences of a termination not received in due time.

12. General Liability

(1)         In case of damages caused by deliberate or gross negligent action, the Parties shall be liable according to the statutory provisions. The same shall apply to damages arising from injury to life, body and health. The German Product Liability Act (“Produkthaftungsgesetz“) shall remain unaffected thereby.
(2)         In case of other material or financial damages caused by negligence, Provider and Customer as well as their subcontractors shall only be liable in case of breach of a material obligation under this Agreement, limited, however, to the amount of such damages that are foreseeable and typical for this kind of agreement at the time of execution of this Agreement; material obligations under this Agreement are the obligations the performance of which characterize this Agreement and on which the Parties may trust.
(3)         The amount of EUR 50.000 is regarded sufficient by the Parties in order to cover the above foreseeable and typical damages.
(4)         To the extent the Parties are liable according to Section 12.2 above only in the amount of the typically foreseeable damages, there is no liability for indirect damages, consequential damages, interruption of operations or lost profit.
(5)         To the extent that the Parties’ liability is excluded or limited, this shall also apply to the personal liability of employees, any member of staff, representatives and subcontractors of the Parties.

13. Force Majeure

(1)         Neither party will be responsible for failure or delay of performance if caused by: an act of war or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party.
(2)         Each party will use reasonable efforts to mitigate the effect of a force majeure event.

14. Term and Termination

(1)         The initial subscription period agreed upon at the time of execution of this Agreement (“Initial Term”) will be 12 months unless otherwise specified in the Order Form.  The Initial Term will automatically renew for successive 12 months periods (“Renewal Term”), unless this Agreement is terminated by either party giving 30 days’ prior notice to the end of the Initial Term or any Renewal Term.
(2)         In the event that either party materially defaults in the performance of any of its obligations under this Agreement and does not substantially cure such default within thirty (30) days after being given written notice specifying the default (or commences a cure), the non-defaulting party may terminate this Agreement, by giving written extraordinary notice thereof.  The statutory provisions applicable to a termination for cause (Section 314 German Civil Code) shall remain unaffected.
(3)         Customer’s right to terminate this Agreement for cause according to Section 543 para. 2 No. 1 German Civil Code will be excluded unless remedy or replacement of the Services have to be deemed to have failed.
(4)         Within thirty (30) days after the effective date of a termination of this Agreement for any reason, Customer will (i) pay Provider all outstanding invoices; and (ii) destroy or return to Provider all Provider property, including all Documentation and the Confidential Information of Provider (if any). Upon the destruction or return of such materials, Customer will provide Provider with a signed written statement certifying that it has destroyed or returned all Provider property to Provider.  Upon termination of this Agreement, all rights and licenses granted by Provider hereunder will cease immediately.
(5)         When requested in writing by Customer, based upon termination of this Agreement, Provider will deliver within ninety (90) days of receipt of request electronic files containing all available Customer Data.  Data files will be delivered in a format as specified by Provider. Fees for the data export will be billed to Customer on a time and materials basis (on the basis of the valid hourly rates agreed upon).

15. Intellectual Property Rights

(1)         This is an Agreement for access to and use of the Service(s) to which Customer subscribes. Services and work results of Consulting Services may be protected by intellectual property laws. The Service(s) to which Customer subscribes and Consulting Services belong to and are based on the intellectual property rights of Provider or his licensors (if any). Provider keeps all ownership rights in the Service(s) to which Provider subscribes.
(2)         Furthermore, all material (“Materials”) displayed or transmitted on Provider’s website and the Service(s), including but not limited to text, photographs, images, illustrations, video clips, audio clips, and graphics are owned by Provider and are protected by copyright, trademarks and other proprietary rights, laws and treaties.
(3)         Except as agreed, Customer may not copy, reproduce, publish, transmit, transfer, sell, rent, modify, create derivative works from, distribute, repost, perform, display, or in any way commercially exploit the Materials carried on Provider’s website. Provider shall not violate any of the copyrights or other intellectual property rights contained in the Materials. Customer may not remove or alter, nor cause to be removed or altered, any copyright, trademark, or other proprietary notices or visual marks and logos from the Materials.
(4)         Customer may make a single print copy of any Materials provided by ValueMiner on this website for contractual use only, provide that Customer will not remove nor cause to be removed any copyright, trademarks, or other proprietary notices or visual marks or logos from the Material. Customer may not archive or retain any of the Materials accessed on this website without Provider’s written permission. All requests for archiving, republication or retention of any part of the Materials must be in writing to ValueMiner and must clearly state the purpose and manner in which the Material will be used. Requests for permission to archive, retain, or republish any part of the Materials may be submitted to info@valueminer.eu.
(5)         Customer acquires no rights or licenses whatsoever in the Services and/or Materials other than the limited rights in accordance with these Terms of Service. Any of the Materials accessed or downloaded from this site must be accessed or downloaded in accordance with this Agreement.

16. Privacy

(1)         The use of the Service is also subject to the Privacy Policy which can be found on the website.
(2)         To the extent ValueMiner processes Personal Data within the meaning of the GDPR and the German Federal Data Protection Act (“Bundesdatenschutzgesetz”) on behalf (“Auftragsverarbeitung”), a separate agreement will become necessary. Provider will not be responsible for the admissibility of the transmission of such Personal Data. Customer has been informed that in connection with this Agreement Customer will be considered to be the controller in the sense of the data protection regulations, as the case may be.

17. Cooperation

Customer will name a designated representative who will be authorized to act as the primary point of contact for Provider in dealing with Customer with respect to each party’s obligations under this Agreement, issue all consents or approvals and make all requests on behalf of Customer. Customer will be responsible, at its own expense, for its access to the Application. Customer agrees to perform all tasks assigned to Customer as set forth in this Agreement, any SOW, or as reasonably requested by Provider, and provide all assistance to Provider in order to accomplish timely and efficiently the Services.

18.  Confidentiality

For the purposes hereof, “Confidential Information” shall mean all non-public, personal or proprietary information of a party. Each party agrees not to disclose and will protect the other’s Confidential Information disclosed in connection herewith from unauthorized dissemination and use with the same degree of care that such party uses to protect its own like information, but in no event using less than a reasonable degree of care to protect such information. Neither party will use the other’s Confidential Information for purposes other than those necessary to directly meet the purposes of the Agreement.

19. Miscellaneous

(1)         This Agreement contains all agreements between the parties with regard to the subject matter of the contract and replaces all earlier agreements between the parties, even if these were made in pre-contractual correspondence or stipulated in the Customer’s request for proposal. Conflicting general terms and conditions of the Customer are hereby expressly rejected by ValueMiner. Verbal or written collateral agreements do not exist.
(2)         Changes or amendments to the Agreement including this clause as well as changes or amendments to the annexes to the Agreement must be made in writing in order to be effective.
(3)         To the extent there is a conflict between the Terms and Conditions and any Order, Schedule, Exhibit or Statement of Work, the order of precedence of documents constituting this Agreement will be as follows: (1) Order (2) Schedules, Exhibits or SOWs and (3) Terms and Conditions.
(4)         Notices will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.
To ValueMiner: 
ValueMiner GmbH
Innere Wiener Str. 11
81667 München, Germany
To Customer:
Customer’s address as provided in your account information.
(5)         This constitutes the entire Agreement between the parties concerning the use of the Services. Should any of contractual provisions be or become invalid (in whole or in part), the remainder of the Agreement shall continue to be valid. The same shall apply if a gap should arise in this Agreement. The parties to the contract shall endeavour to replace the invalid provision, in whole or in part, by an appropriate provision which – as far as legally possible – comes closest to what the parties to the contract would have wanted if they had considered the invalidity. The same applies to the subsequent discovery of a contractual gap.
(6)         Customer shall not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law (Change of Control”) without ValueMiner’s prior written consent, which will not be unreasonably withheld. ValueMiner may assign this Agreement to any affiliate or in the event of a Change of Control.
(7)         Nothing in this Agreement, expressed or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(8)         This Agreement will be governed and construed in accordance with the laws of Germany, without regard to its conflicts of law provisions. Exclusive place of jurisdiction shall be Munich, Germany.
(9)         In the event of a conflict between the English and German language versions of this Agreement, the English language version shall prevail.

Updated: 27th of May 2019