Terms of service

Terms of contract for the use of lalalytics

1. Services

1.1 The Provider shall provide the contractual services, in particular access to the software, in its area of availability (from the data center interface to the Internet). The scope of services, the nature, the intended use and the conditions of use of the contractual services are set forth in the respective service description and, in addition, in the operating instructions for the software.

1.2 Any additional services, such as the development of customized solutions or necessary adaptations, shall require a separate contract.

1.3 The Provider may provide updated versions of the Software. The Provider shall inform the Customer electronically about updated versions and corresponding instructions for use and make them available accordingly.

2. Scope of use

2.1 The contractual services may only be used by the customer and only for the purposes agreed in the contract. During the term of the contract, the customer may access the contractual services by means of telecommunications (via the Internet) and use the functionalities associated with the software in accordance with the contract by means of a browser or another suitable application (e.g. “app”). The customer shall not receive any rights beyond this, in particular to the software or the infrastructure services provided in the respective data center, if any. Any further use requires the prior written consent of the Provider.

2.2 In particular, the Customer may not use the software beyond the agreed scope of use or have it used by third parties or make it accessible to third parties. In particular, the Customer shall not be permitted to reproduce, sell or make available for a limited period of time, rent or lend software or parts thereof.

2.3 The Provider shall be entitled to take appropriate technical measures to protect against use not in accordance with the contract. The contractual use of the services may not be more than insignificantly impaired as a result.

2.4 In the event that a user exceeds the scope of use in violation of the contract or in the event of an unauthorized transfer of use, the customer shall, upon request, immediately provide the Provider with all information available to it for asserting claims due to the use in violation of the contract, in particular the name and address of the user.

2.5 The Provider may revoke the Customer’s access authorization and / or terminate the contract if the Customer significantly exceeds the use permitted to him or violates regulations for protection against unauthorized use. In connection with this, the provider can interrupt or block access to the contractual services. The Provider shall generally set the Customer a reasonable grace period for remedial action beforehand. The sole revocation of the access authorization shall not be deemed to be a termination of the contract at the same time. The Provider may only maintain the revocation of the access authorization without termination for a reasonable period of time, not exceeding 3 months.

2.6 The Provider’s claim to remuneration for use exceeding the agreed use shall remain unaffected.

2.7 The Customer shall be entitled to have the access authorization and the access possibility restored after it has proven that it has ceased the use in breach of contract and has prevented future use in breach of contract.

3. Availability, deficiencies in performance

3.1 The availability of the services provided shall be determined by the service description.

3.2 In the event of only an insignificant reduction in the suitability of the services for use in accordance with the contract, the Customer shall have no claims based on defects. The strict liability of the Provider due to defects that were already present at the time of the conclusion of the contract is excluded.

3.3 § 578b BGB remains unaffected.

4. Data protection

4.1 Insofar as the Provider has access to personal data of the Customer or from the Customer’s area, the Provider shall act exclusively as a processor and shall process and use such data only for the performance of the contract. The Provider shall comply with the Customer’s instructions for handling such data. The Customer shall bear any adverse consequences of such instructions for the performance of the contract. The Customer shall agree with the Provider the details for the Provider’s handling of the Customer’s data in accordance with the requirements of data protection law.

4.2 The Customer shall remain the responsible party both generally in the contractual relationship and in terms of data protection law. If the Customer processes personal data (including collection and use) in connection with the contract, the Customer warrants that it is entitled to do so in accordance with the applicable provisions, in particular the provisions of data protection law, and shall indemnify the Provider against third-party claims in the event of a breach.

4.3 The following shall apply to the relationship between the Provider and the Customer: vis-à-vis the data subject, the Customer shall bear responsibility for the processing (including collection and use) of personal data, except to the extent that the Provider is responsible for any claims by the data subject due to a breach of duty attributable to it. The Customer shall responsibly examine, process and respond to any inquiries, requests and claims of the data subject. This shall also apply in the event of a claim against the Provider by the data subject. The Provider shall support the Customer within the scope of its duties.

4.4 The Provider warrants that Customer data will be stored exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union or in another contracting state of the Agreement on the European Economic Area, unless otherwise agreed.

5. Obligations of the Customer

5.1 The Customer shall protect the access authorizations as well as identification and authentication information assigned to him or to the Users from access by third parties and shall not disclose them to unauthorized persons.

5.2 The Customer is obligated to indemnify the Provider against all claims of third parties due to infringements of rights that are based on an unlawful use of the subject matter of the service by the Provider or are made with the Provider’s approval. If the customer recognizes or must recognize that such an infringement is imminent, the obligation exists to inform the provider immediately.

5.3 The Customer shall use the possibilities provided by the Provider to secure its data in its original area of responsibility.

6. use contrary to contract, compensation for damages

For each case in which a contractual service is used without authorization in the customer’s area of responsibility, the customer shall pay damages in the amount of the remuneration that would have been incurred for the contractual use within the framework of the minimum contract period applicable to this service. The customer reserves the right to prove that the customer is not responsible for the unauthorized use or that there is no damage or significantly less damage. The Provider shall remain entitled to claim further damages.

7. fault management

7.1 The Provider shall receive fault reports from the Customer, assign them to the agreed fault categories (Section 7.3) and, on the basis of this assignment, carry out the agreed measures to analyze and rectify faults.

7.2 The Provider shall accept proper fault reports from the Customer during its normal business hours and assign an identifier to each. Upon the Customer’s request, the Provider shall confirm receipt of a fault report to the Customer and inform the Customer of the assigned identification.

7.3 Unless otherwise agreed, the Provider shall assign received fault reports to one of the following categories after first reviewing them:

a) Serious malfunction The malfunction is based on a defect in the contractual services which makes the use of the contractual services, in particular the software, impossible or only permits it with serious restrictions. The Customer cannot reasonably circumvent this problem and therefore cannot complete tasks that cannot be postponed.

b) Other malfunction The malfunction is based on a defect in the contractual services that restricts the Customer’s use of the contractual services, in particular the software, more than just insignificantly, without constituting a serious malfunction.

c) Other messages Malfunction messages that do not fall into categories a) and b) shall be assigned to other messages. Other messages shall only be handled by the Provider in accordance with the agreements made for this purpose.

7.4 In the event of reports of serious disruptions and other malfunctions, the Provider shall immediately initiate appropriate measures based on the circumstances communicated by the Customer in order to first localize the cause of the disruption. If, after initial analysis, the reported malfunction does not appear to be a fault in the contractual services, in particular in the software provided, the Provider shall notify the Customer of this without delay. Otherwise, the Provider shall arrange for appropriate measures to be taken for further analysis and to rectify the notified fault or - in the case of third-party software - shall forward the fault report together with its analysis results to the distributor or manufacturer of the third-party software with a request for remedial action. The Provider shall immediately provide the Customer with measures available to it for circumventing or rectifying a fault in the contractual services, in particular in the software provided, such as instructions for action or corrections to the software provided. The Customer shall immediately adopt such measures for the circumvention or correction of faults and shall immediately report any remaining faults to the Provider again upon their use.

8. Point of contact

8.1 Contractual Services The Provider shall establish a point of contact for the Customer. This office shall process the Customer’s inquiries in connection with the technical requirements and conditions for use of the software provided as well as individual functional aspects.

8.2 Acceptance and processing of inquiries It is a prerequisite for the acceptance and processing of inquiries that the Customer designates to the Provider professionally and technically appropriately qualified personnel who are assigned internally at the Customer with the processing of inquiries of the users of the provided software. The Customer is obligated to direct inquiries to the point of contact only via this personnel designated to the Provider and to use forms provided by the Provider for this purpose. The Contact Point shall accept such requests by e-mail. The Point of Contact shall process and, to the extent possible, respond to proper inquiries in the ordinary course of business. The Contact Point may refer to documentation available to the Customer and other educational resources for the Software provided. To the extent that an answer by the point of contact is not possible or not possible in a timely manner, the Provider shall - to the extent expressly agreed - forward the inquiry for processing, in particular inquiries regarding software not produced by the Provider. Further services of the hotline, such as other response times and deadlines as well as on-call services or on-site operations of the Provider at the Customer’s premises shall be expressly agreed upon in advance.

9. Term of Contract and Termination of Contract

9.1 The contractually agreed services shall be provided from the date specified in the contract initially for the duration of the term agreed in the contract. During this minimum term, premature ordinary termination shall be excluded on both sides.

9.2 The contract may be terminated monthly, at the earliest at the end of the contract term. If this is not done, the contract shall be extended by the respective period, unless it has been terminated with due notice at the end of the respective extension period.

9.3 The right of each contractual partner to extraordinary termination for good cause shall remain unaffected.

9.4 Any notice of termination must be in writing to be effective.

9.5 The Customer shall back up its data files on its own responsibility in good time before termination of the contract. Upon request, the Provider shall support the Customer in this regard; Section 4.4 General Terms and Conditions of Contract shall apply. After termination of the contract, the Customer will generally no longer be able to access these databases for reasons of data protection.

10. Our General Terms and Conditions of Contract shall apply in addition

General Terms and Conditions of Contract

1. Remuneration, payment, performance protection, deadlines

1.1 Unless otherwise agreed, remuneration shall be calculated on a time and material basis at the Provider’s prices generally applicable at the time of conclusion of the contract. Remunerations are in principle net prices plus legally applicable value added tax. The Provider may invoice on a monthly basis. If services are remunerated on a time and material basis, the Provider shall document the nature and duration of the activities and submit this documentation with the invoice.

1.2 All invoices shall be paid in full no later than 10 calendar days after receipt.

1.3 The Customer may only offset or withhold payments due to defects to the extent that it is actually entitled to payment claims due to material defects or defects in title of the performance. Due to other claims for defects, the customer may withhold payments only to a proportionate extent taking into account the defect. Clause 4.1 shall apply accordingly. The customer shall have no right of retention if its claim for defects is time-barred. Apart from that, the customer may only set off or exercise a right of retention against undisputed or legally established claims.

1.4 The Provider shall retain title and rights to be granted to the Services until the remuneration owed has been paid in full; justified retentions of defects pursuant to Clause 1.3. sentence 2 shall be taken into account. Furthermore, the Provider retains ownership until all its claims arising from the business relationship with the Customer have been satisfied. The Provider shall be entitled to prohibit the Customer from further use of the Services for the duration of any default in payment by the Customer. The provider can only assert this right for a reasonable period of time, usually for a maximum of 6 months. This does not constitute a withdrawal from the contract. § Section 449 (2) of the German Civil Code (BGB) shall remain unaffected. If the customer or his purchaser returns the services, the acceptance of the services does not constitute a withdrawal of the provider, unless he has expressly declared the withdrawal. The same applies to the seizure of the reserved goods or rights to the reserved goods by the provider. The customer may neither pledge nor transfer by way of security items under reservation of title or ownership. The customer is only permitted to resell the goods in the ordinary course of business as a reseller on condition that the customer has effectively assigned to the supplier its claims against its customers in connection with the resale and the customer transfers ownership to its customer subject to payment. By the present conclusion of the contract, the customer assigns his future claims in connection with such sales against his customers to the supplier by way of security, who hereby accepts this assignment. Insofar as the value of the Supplier’s security interests exceeds the amount of the secured claims by more than 20%, the Supplier shall release a corresponding share of the security interests at the Customer’s request.

1.5 In the event of a permissible transfer of rights of use to deliveries and services, the customer shall be obliged to impose the contractually agreed restrictions on the recipient thereof.

1.6 If the customer does not settle a due claim in full or in part by the contractual payment date, the provider may revoke agreed payment terms for all claims. Furthermore, the Provider shall be entitled to perform further services only against advance payment or against security in the form of a performance bond issued by a credit institution or credit insurer licensed in the European Union. The advance payment shall cover the respective billing period or - in the case of one-off services - their remuneration.

1.7 In the event of the Customer’s economic inability to fulfill its obligations to the Provider, the Provider may terminate existing exchange contracts with the Customer by rescission, continuing obligations by termination without notice, including in the event of an application for insolvency by the Customer. § 321 BGB and § 112 InsO remain unaffected. The Customer shall inform the Provider in writing at an early stage of any impending insolvency.

1.8 Fixed performance dates shall be agreed exclusively in an expressly documented form. The agreement of a fixed performance date shall be subject to the proviso that the Provider receives the services of its respective upstream suppliers in due time and in accordance with the contract.

2. Cooperation, Duties to Cooperate, Confidentiality

2.1 The Customer and the Provider shall each appoint a responsible contact person. Unless otherwise agreed, communication between the Customer and the Provider shall take place via these contact persons. The contact persons shall immediately bring about all decisions related to the execution of the contract. The decisions shall be documented in a binding manner.

2.2 The Customer shall be obligated to support the Provider to the extent necessary and to create in its sphere of operation all conditions necessary for the proper execution of the order. To this end, the Customer shall in particular provide the necessary information and, if possible, enable remote access to the Customer’s system. If remote access is not possible for security reasons or other reasons, the deadlines affected by this shall be extended appropriately; the contractual partners shall agree on an appropriate arrangement for further effects. The Customer shall also ensure that expert personnel are available to support the Provider. Insofar as it is agreed in the contract that services can be performed on site at the Customer’s premises, the Customer shall provide sufficient workstations and work equipment free of charge at the Provider’s request.

2.3 Unless otherwise agreed, the customer shall provide for proper data backup and failure precautions for data and components (such as hardware, software) that are appropriate to their type and importance.

2.4 The Customer shall immediately report any defects in writing in a comprehensible and detailed form, stating all information relevant for the detection and analysis of defects. In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect shall be stated. Unless otherwise agreed, the relevant forms and procedures of the Provider shall be used for this purpose.

2.5 The Customer shall support the Provider in examining and asserting claims against other parties involved in connection with the performance of the service appropriately upon request. This shall apply in particular to recourse claims of the Provider against upstream suppliers.

2.6 The contracting parties shall be obliged to maintain secrecy with regard to business secrets and other information designated as confidential (e.g. in documents, records, data files) which become known in connection with the performance of the contract and not to use or disclose such information beyond the purpose of the contract without the written consent of the other contracting party. The respective receiving contractual partner shall be obliged to take appropriate confidentiality measures for business secrets and for information designated as confidential. The contracting parties shall not be entitled to obtain business secrets of the other contracting party by observing, examining, dismantling or testing the subject matter of the contract. The same shall apply to other information or objects obtained during the performance of the contract. Business secrets and other information designated as confidential may only be disclosed to persons who are not involved in the conclusion, performance or execution of the contract with the written consent of the other contracting party. Unless otherwise agreed, the obligation to maintain secrecy for other information designated as confidential shall end five years after the respective information becomes known, but in the case of continuing obligations not before their termination. Business secrets shall be kept secret for an unlimited period of time. The contractual partners shall also impose these obligations on their employees and any third parties engaged.

2.7 The contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is subject to security risks. In this type of communication, they shall therefore not assert any claims based on the lack of encryption, except to the extent that encryption has been agreed upon in advance.

3. disruptions in the provision of services

3.1 If a cause for which the Provider is not responsible, including strike or lockout, impairs compliance with deadlines (“Disruption”), the deadlines shall be postponed by the duration of the Disruption, if necessary including a reasonable restart phase. A contractual partner shall immediately inform the other contractual partner of the cause of a disruption occurring in its area and the duration of the postponement.

3.2 If the effort is increased due to a disruption, the Provider may also demand payment for the additional effort, unless the Customer is not responsible for the disruption and its cause lies outside its sphere of responsibility.

3.3 If the Customer is entitled to withdraw from the contract due to improper performance by the Provider and / or to claim damages instead of performance or claims such, the Customer shall declare in writing at the Provider’s request within a reasonably set period of time whether it asserts these rights or continues to wish the performance of the service. In the event of a withdrawal, the Customer shall reimburse the Provider for the value of previously existing possibilities of use; the same shall apply to deteriorations due to intended use. If the Provider is in default with the provision of the service, the Customer’s compensation for damages and expenses due to the default shall be limited to 0.5% of the price for the part of the contractual service that cannot be used due to the default for each full week of the default. The liability for delay shall be limited to a maximum of 5% of the remuneration for all contractual services affected by the delay; in the case of continuing obligations, in relation to the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon at the time of conclusion of the contract shall apply. This shall not apply if a delay is due to gross negligence or intent on the part of the Provider.

3.4 In the event of a delay in performance, the customer shall only have a right of withdrawal within the framework of the statutory provisions if the delay is the responsibility of the provider. If the Customer asserts a claim for damages or reimbursement of expenses in lieu of performance due to the delay, the Customer shall be entitled to demand 1% of the price for the part of the contractual performance that cannot be used due to the delay for each full week of the delay, but no more than a total of 10% of this price; in the case of continuing obligations, in relation to the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon conclusion of the contract shall apply.

4. Defects in quality and reimbursement of expenses

4.1 The Provider warrants the contractual quality of the Services. There shall be no claims for material defects for an only insignificant deviation of the Provider’s services from the contractual quality. Claims for defects shall also not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment. The same shall apply in the event of software errors that cannot be reproduced or otherwise proven by the customer. This shall also apply in the event of damage due to special external influences which are not assumed under the contract. Claims for defects shall also not exist in the event of subsequent modification or repair by the customer or third parties, unless this does not impede the analysis and elimination of a material defect. Clause 6 shall apply additionally to claims for damages and reimbursement of expenses.

4.2 The limitation period for material defect claims shall be one year from the statutory commencement of the limitation period. The statutory periods for recourse pursuant to § 478 BGB shall remain unaffected. The same shall apply insofar as longer periods are prescribed by law in accordance with § 438 para. 1 no. 2 or § 634a para. 1 no. 2 BGB, in the event of an intentional or grossly negligent breach of duty by the Supplier, in the event of fraudulent concealment of a defect and in cases of injury to life, limb or health as well as for claims under the Product Liability Act. The processing of a notice of material defect by the customer by the provider only leads to the suspension of the statute of limitations, provided that the legal requirements for this are met. A new start of the limitation period does not occur. A supplementary performance (new delivery or rectification) can only have an influence on the limitation period of the defect triggering the supplementary performance.

4.3 Claims under a right of recourse in the case of contracts for digital products pursuant to Section 327u of the German Civil Code (BGB) shall remain unaffected by Sections 4.1 and 4.2. If a customer asserts a possible claim against the customer that may lead to a recourse claim, the customer shall immediately inform the provider of the asserted claim and the further information necessary and useful for its assessment. The Customer shall provide the Provider with the opportunity to satisfy the claim asserted by the Customer’s customer, unless this is unreasonable for the Customer. The Customer and the Provider shall coordinate and cooperate with the aim of satisfying a justified claim of the Customer’s customer in the most cost-efficient and cost-effective manner.

4.4 The Provider may demand compensation for its expenses insofar as a) it takes action on the basis of a report without there being a defect, unless the Customer was unable to recognize with reasonable effort that there was no defect, or b) a reported malfunction cannot be reproduced or otherwise proven by the Customer to be a defect, or c) additional expenses are incurred due to the Customer’s failure to properly fulfill its obligations (see also Sections 2.2, 2.3, 2.4 and 5.2).

5. Defects of title

5.1 The Provider shall be liable for infringements of third party rights by its performance only to the extent that the performance is used in accordance with the contract and in particular in the contractually agreed, otherwise in the intended environment of use without modification. The Provider shall be liable for infringements of third party rights only within the European Union and the European Economic Area and at the place of contractual use of the performance. Clause 4.1 sentence 1 shall apply accordingly.

5.2 If a third party asserts against the Customer that a service of the Provider infringes its rights, the Customer shall notify the Provider without undue delay. The Provider and, if applicable, its upstream suppliers shall be entitled, but not obligated, to defend the asserted claims at their own expense to the extent permissible. The customer is not entitled to acknowledge claims of third parties before he has given the provider reasonable opportunity to defend the rights of third parties in another way.

5.3 If the rights of third parties are infringed by a service of the Provider, the Provider shall, at its own discretion and at its own expense, a) procure for the Customer the right to use the service or b) render the service free of infringement or c) take back the service with reimbursement of the remuneration paid for it by the Customer (less reasonable compensation for use) if the Provider cannot achieve any other remedy at reasonable expense. The interests of the customer shall be given due consideration in this respect.

5.4 Claims of the customer due to defects of title shall become time-barred in accordance with clause 4.2. Clause 6 shall apply additionally to claims for damages and reimbursement of expenses of the customer; clause 4.3 shall apply accordingly to additional expenses of the provider.

6. General liability of the provider

6.1 The Provider shall always be liable to the Customer a) for damages caused by it and its legal representatives or vicarious agents intentionally or through gross negligence, b) under the Product Liability Act and c) for damages resulting from injury to life, body or health for which the Provider, its legal representatives or vicarious agents are responsible.

6.2 The Provider shall not be liable for slight negligence, except to the extent that it has breached a material contractual obligation, the fulfillment of which is a prerequisite for the proper performance of the contract or the breach of which jeopardizes the attainment of the purpose of the contract and on the observance of which the Customer may regularly rely. In the case of damage to property and financial loss, this liability shall be limited to the foreseeable damage typical of the contract. This also applies to lost profits and savings. Liability for other remote consequential damages is excluded. For a single case of damage, liability is limited to the value of the contract, in the case of ongoing remuneration to the amount of remuneration per contract year, but not less than € 50,000. Section 4.2 applies accordingly to the statute of limitations. The contracting parties may agree in writing on a more extensive liability upon conclusion of the contract, usually against a separate remuneration. Priority shall be given to an individually agreed liability sum. The liability according to clause 6.1 remains unaffected by this paragraph. In addition and with priority, the liability of the Provider due to slight negligence arising from the respective contract and its execution for damages and reimbursement of expenses, irrespective of the legal grounds, shall be limited in total to the percentage of the remuneration agreed in this contract at the time of conclusion of the contract. Liability pursuant to Section 6.1 b) shall remain unaffected by this paragraph.

6.3 The Provider shall only be liable for damages arising from a warranty declaration if this was expressly assumed in the warranty. In the event of slight negligence, this liability shall be subject to the limitations set forth in Section 6.2.

6.4 In the event of necessary restoration of data or components (such as hardware, software), the Provider shall only be liable for the effort required for the restoration in the event of proper data backup and failure precautions by the Customer. In the event of slight negligence on the part of the Provider, this liability shall only apply if the Customer has carried out a data backup and failure precaution appropriate to the type of data and components prior to the incident. This shall not apply if this has been agreed as a service of the Provider.

6.5 Clauses 6.1 to 6.4 shall apply mutatis mutandis to claims for reimbursement of expenses and other liability claims of the Customer against the Provider. Clauses 3.3 and 3.4 shall remain unaffected.

7. Data protection

The Customer shall conclude with the Provider any agreements necessary under data protection law for the handling of personal data.

8. Miscellaneous

8.1 The Customer shall be responsible for observing any import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border deliveries or services, the customer shall bear any customs duties, fees and other charges. The customer shall handle legal or official procedures in connection with cross-border deliveries or services on its own responsibility, unless otherwise expressly agreed.

8.2 German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.

8.3 The Provider shall provide its services on the basis of its General Terms and Conditions (GTC). The Customer’s GTC shall not apply, even if the Provider has not expressly objected to them. Acceptance of the services by the Customer shall be deemed to be acceptance of the Provider’s GTC with waiver of the Customer’s GTC. Other terms and conditions shall only be binding if the Provider has acknowledged them in writing; the Provider’s GTC shall then apply in addition.

8.4 Amendments and supplements to this contract shall only be agreed in writing. Insofar as written form is agreed (e.g. for notices of termination, withdrawal), text form shall not suffice.

8.5 The place of jurisdiction vis-à-vis a merchant, a legal entity under public law or a special fund under public law shall be the Provider’s registered office. The Provider may also sue the Customer at the Customer’s registered office.