General Terms and Conditions
§ 1 Application of the General Terms and Conditions
(1) The General Terms and Conditions accepted by both contracting parties regulate the terms and conditions between risikomonitor.com gmbh (trademark of mavenja gmbh) represented by Manuel Löw-Beer, MBA MPA hereinafter referred to as the “Contractor” and the customer, hereinafter referred to as the “Client”, as a service contract within the meaning of §§ 611 ff. BGB, unless otherwise agreed in writing between the contracting parties.
(2) The Contractor offers various services in the area of software-as-a-service (“Saas”). The type and scope of the mutual services are regulated by the contractual agreements. The Contractor provides SaaS services for the Client via the Internet in the area of software. The subject of the contract is the provision of the software for the duration of the contract, together with the granting of the rights required for its contractual use, as well as the use of the website for public appearance by the Client. The scope of services defined in the contract is considered to be the agreed quality.
(3) The subject of the order is the provision of an agreed service (service contract) and not the achievement of a specific result (no work contract). The ordered services are deemed to have been provided when the required services have been carried out and any questions that may have arisen have been dealt with. In his own interest, the client undertakes to provide all relevant information truthfully and completely.
(4) These general terms and conditions apply to companies in accordance with Section 14 of the German Civil Code (BGB) and to consumers in accordance with Section 13 of the German Civil Code (BGB).
(5) These terms and conditions apply to all current and future business relationships between the contractor and the client.
(6) Differing, conflicting or supplementary general terms and conditions do not become part of the contract, even if they are known, unless the contractor expressly agrees to their validity in writing.
§ 2 Conclusion of contract
(1) The client books a corresponding service with the contractor. The contractor accepts this booking by means of a booking confirmation. A booking can be made in person, by telephone, by email, using the contact form or via the contractor’s website.
(2) In any case, the contract is only concluded when the contractor confirms the client’s booking. The client’s booking is binding. The client receives an invoice by email with the booking confirmation.
(3) The contractor’s offers are subject to change. Acceptance, additions, modifications and ancillary agreements require written confirmation by the contractor.
(4) The contractor is entitled to reject a contract without giving reasons, e.g. if the contractor cannot or is not allowed to provide the service due to his specialization or for legal reasons, or if there are reasons that could cause him to have a conflict of conscience. In this case, the contractor’s claim to remuneration for the services provided up to the time of rejection of the service remains.
§ 3 Content of the contract
(1) The contractor provides its services to the client in the form of applying its knowledge and skills in the above-mentioned areas. The contractor provides the client with the agreed software for use as part of a software-as-a-service contract (SaaS contract). The software is the property of the contractor and is not sold, but merely rented.
(2) To access and use the service, the contractor will provide the client with the necessary access data required to access the service.
(3) The client undertakes to use the information materials, reports and analyses created by the contractor as part of the service only for its own purposes. The client receives the exclusive and non-transferable right to use them.
(4) All of the contractor’s documents 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 sound recordings of the methods of the service without the express permission of the contractor.
(5) If software is included in the scope of delivery, the client is granted a non-exclusive and non-transferable right to use the software supplied, including its documentation; it is provided exclusively for use on the delivery item intended for it. Use, reproduction, revision, translation of the software and conversion of the object code into the source code for other purposes is prohibited.
§ 4 Implementation of the service
(1) The service is based on cooperation. The client is responsible for providing a correct email address and regularly checking his emails.
(2) The contractor is entitled to postpone the implementation of a service if he or a third party service provider engaged by him is prevented from doing so, e.g. due to riots, strikes, lockouts, natural disasters, storms, traffic obstructions or illness, which prevent the contractor from carrying out the service on the agreed date through no fault of his own. In this case, the client has no right to claim damages.
(3) The image and description of the service on the contractor’s website are for illustration purposes only and are only approximate information. No guarantee is given for complete compliance.
(4) The contractor is entitled to make adjustments to the content or the process of the service for technical reasons, for example if there is a need for an update or further development of the service content, provided that this does not result in a significant change to the service content and the change is reasonable for the client.
(5) The contractor provides the client with the agreed software in the latest version and ensures the maintenance and care of the software. The contractor is entitled to update and expand the software at any time in order to improve the performance of the software or to adapt it to the needs of the market.
(6) The client is obliged to use the software exclusively for its own operational purposes and to comply with the contractual provisions. The client is not entitled to change or decompile the software. The client undertakes not to use any data or content that violates applicable law or infringes the rights of third parties.
(7) The contractor does not have to carry out the service himself. He is entitled to outsource the performance of the service to third parties, e.g. subcontractors, at his own discretion.
(8) The client is obliged to protect the software from access by unauthorized third parties by taking appropriate measures, in particular to keep all copies of the software in a secure location.
§ 5 Payment
(1) A monthly fee is charged for the use of the SaaS solution, the amount of which is based on the provider’s current price list. The user authorizes the provider to collect the fee monthly from the specified means of payment or to pay by invoice.
(2) Payment must be made to the contractor immediately after receipt of the invoice by the client. Payment is due upon receipt of the invoice by email.
(3) The monthly fee is paid in advance. In the event of unsuccessful payment, the provider is entitled to block access to the software.
(4) All prices on the contractor’s homepage are listed as net prices.
§ 6 Property rights of the contractor and third parties
(1) All rights to the results of the service that are related to the work of the contractor for the client, in particular all copyright usage rights, all design rights, all trademark and label rights and other intellectual property rights (including all development stages), belong exclusively and without restriction to the contractor.
(2) The client hereby transfers to the contractor the exclusive, temporally, spatially and content-wise unrestricted rights of use at the time the results are created.
(3) The contractor permanently retains the right to its logo and brand. The contractor’s brand and logo may not be used by the client without the client’s consent.
(4) If the contractual use of the work results created by the contractor infringes the intellectual property rights of third parties, the client will indemnify the contractor against legally binding claims by third parties based on existing intellectual property rights of third parties, insofar as the work results are based on specifications or supplies provided by the client. The client will immediately inform the contractor in writing of any claims made.
§ 7 Confidentiality
(1) The parties will treat all trade secrets and other information of the other party marked as confidential (hereinafter referred to as “confidential information”) as confidential. The receiving party (“recipient”) will 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 businessman.
(2) Use of the confidential information is limited to use in connection with this contract. Without the prior consent of the disclosing party, the disclosure of confidential information to third parties is not permitted. Consent must be in writing. Affiliated companies of the parties and consultants who are legally obliged to maintain confidentiality are not third parties within the meaning of this paragraph.
(3) To the extent that applicable legal obligations require this, the recipient is also entitled to disclose and pass on confidential information. To the extent permitted by law, the recipient will inform the disclosing party before disclosing confidential information.
(4) The parties will require their employees or third parties to whom they pass on confidential information to treat this information confidentially within the framework of the respective subcontractor and employment relationships, with the proviso that the obligation of confidentiality continues even after the end of the respective subcontractor or employment relationship, unless a corresponding general obligation to maintain confidentiality already exists.
(5) Exempt from the obligation of confidentiality are information that
a) was already generally known at the time of conclusion of the contract or subsequently becomes generally known without violating the confidentiality obligations contained in this contract;
b) was developed by the recipient independently of this contract; or
c) was received by the recipient from third parties or outside this contract from the disclosing party without an obligation of confidentiality.
The party invoking the exception is responsible for providing proof of the existence of the exceptions mentioned in this paragraph.
(6) Upon termination of this contract, the parties will release or delete any confidential information of the other party in their possession at the request of that party. Excluded from this are confidential information for which there is a longer statutory retention period, as well as data backups as part of standard backup processes.
(7) The contractor is entitled to use empirical knowledge, such as ideas, concepts, methods and know-how, that is developed or revealed in the course of the contract implementation and is stored in the memory of the people employed to provide the service. This does not apply if this infringes the client’s industrial property rights or copyrights. The obligation to maintain confidentiality remains unaffected.
§ 8 Term and termination
(1) The contract is concluded for the term agreed in the respective contract. If it is a one-off provision of a service, this is noted in the contract and the following paragraphs of § 8 do not apply to it.
(2) The term of the contract is extended by one month if the client is a consumer, unless otherwise agreed between the contractor and the client. For entrepreneurs, the contractual relationship is always extended by the original term.
(3) If the contractual relationship is not terminated three months before the end of the respective term, it is always extended by a further month if the client is a consumer. For entrepreneurs, the contractual relationship is always extended by the original term.
(4) After the end of the regular term, the notice period is one month to the end of each calendar month for consumers and one month to the end of the extended term for entrepreneurs. The termination must also be in writing.
(5) The right to terminate the contract without notice and for good cause remains unaffected. The contractor has a right to terminate the contract for good cause in particular if the client has defaulted on payments more than twice, if he has intentionally violated the provisions of these terms and conditions and/or has intentionally or negligently committed prohibited acts or if the relationship of trust has been permanently damaged.
(6) In the event of early termination by the client for good cause, the contractor’s claim to remuneration remains unaffected. The client reserves the right to prove that the contractor has suffered no or significantly less damage.
§ 9 Liability and warranty
(1) The contractor is 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 wasted expenditure.
(2) In other cases, the contractor is only liable – unless otherwise provided in paragraph 3 – if a contractual obligation is violated, the fulfillment of which makes the proper execution of the contract possible in the first place and on whose compliance the client can regularly rely (so-called cardinal obligation), and is limited to compensation for foreseeable and typical damage. In all other cases, the contractor’s liability is excluded, subject to the provisions in paragraph 3.
(3) Liability for damages resulting from injury to life, body or health and under the Product Liability Act remains unaffected by the above limitations and exclusions of liability.
(4) The contractor protects its clients as best as possible against cybercrime. Unfortunately, this cannot always be prevented. The exclusion of liability in paragraphs 1 to 3 also applies to damages caused to the client by such cybercrime, with the exceptions mentioned.
§ 10 Data protection
(1) The client expressly consents to the electronic processing of his personal data within the framework of the following regulations. Customer data is treated with absolute confidentiality. The data provided by the client is used exclusively for the professional execution of the service. The data is not passed on to third parties. This does not apply to information that is publicly accessible or becomes publicly accessible without unauthorized action or omission by the contracting parties or must be made accessible due to a court order or a law. In the case of support assistance in the event of problems of the client, it may be necessary to access the client’s data records. This access is limited to the period of the respective support measure.
(2) The contractor undertakes to maintain confidentiality regarding all confidential information (including business secrets) that he learns in connection with this contract and its implementation 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 arises from the circumstances, regardless of whether it was communicated in written, electronic, physical or oral form. The confidentiality obligation does not apply if the contractor is required to disclose the confidential information by law or due to a final or legally binding decision by an authority or court. The contractor undertakes to agree with all employees and subcontractors on an arrangement that is identical to the above paragraph.
(3) The parties will comply with the applicable data protection regulations that apply to them. The separate data protection regulations on the contractor’s homepage apply.
§ 11 Right of withdrawal
(1) The withdrawal is excluded.
§ 12 European dispute resolution
(1) The contractor refers to online dispute resolution in accordance with Art. 14 Para. 1 ODR-VO: The European Commission provides a platform for online dispute resolution (OS), which the clients can find at https://ec.europa.eu/consumers/odr . Here you can enter into the out-of-court settlement of consumer disputes arising from online contracts.
(2) The contractor is not willing or obliged to participate in a dispute resolution procedure before a consumer arbitration board.
§ 13 Final provisions
(1) Should individual provisions of the General Terms and Conditions or the respective service contract be or become invalid or void, this does not affect the validity of the General Terms and Conditions or the service contract as a whole. Rather, the invalid or void provision is to be replaced in free interpretation by a provision that comes closest to the purpose of the contract or the will of the parties.
(2) Austrian law applies, excluding conflict of laws rules.
(3) Changes and additions to the service contract must be in writing to be effective. There are no oral side agreements.
(4) If the client is a merchant, the place of jurisdiction for all disputes arising from the contractual relationship is the registered office of the contractor. Otherwise, the statutory provisions apply.
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