§ 1 General
(1) The following General Terms and Conditions ("GTC") shall govern the legal relationships between VP Venue Planner Development & Sales GmbH, registered in the Commercial Register of the Local Court of Düsseldorf under HRB 91970 ("VP") and its respective customers ("Customer").
(2) The subject matter of the Agreement is the granting of the non-exclusive, non-transferable and non-sublicensable right, limited to the term of the Agreement, for the Customer to use VP's software solution for the digital planning of events, in particular for planning the deployment of event personnel and materials as well as the digital maintenance of checklists within the scope of a 'Software as a Service' ("Software") via Internet access.
(3) The following shall apply with regard to the IT infrastructure on the part of VP: The software, the system performance required for use as well as the necessary storage space for data shall be provided by VP or a third party commissioned by VP. VP shall use dutiful security measures to protect the system area assigned to the Customer against access by third parties.
(4) The following shall apply with regard to the IT infrastructure on the Customer's side: The customer's access to the Internet is not the subject of this contractual relationship. The Customer shall bear sole responsibility for the functionality of its Internet access, including the transmission paths, as well as its own computer. The software is currently optimized for use with the browsers Mozilla Firefox and Google Chrome. VP does not vouch for the functionality of the software with any other browser.
§ 2 Services
(1) VP offers the use of the Software in three different standardized licenses: Basic, Premium and Business. Instead of using one of the three standard licenses, it shall also be possible to grant the Customer an enterprise license of the software for use tailored to its specific needs. The respective scope of the license is specified in detail in a separate service specification, e.g. the number of plans that can be processed per project ("service specification"). The List of Services is part of the contractual relationship between VP and Customer and is attached to these GTC as an appendix.
(2) Each license includes a user account by means of which the software can be used by the customer. At the Customer's request, VP shall grant the Customer the option to acquire further licenses against payment.
(3) VP shall be entitled to change the content and the manner of the services including the software provided, in particular in the event of further technological developments. If the change is one that restricts the previous scope of services to the detriment of the Customer, the following shall apply:
a) VP shall inform the Customer about the change and his rights according to the following lit. b) - d) at least one month before the change.
b) The customer has the right to terminate the contractual relationship extraordinarily in writing with a notice period of two weeks to the date of the change.
c) Alternatively, the Customer shall also have the right to object to the amendment in writing with a notice period of two weeks to the amendment date. In this case, VP shall have the right to terminate the contractual relationship with the customer extraordinarily in writing with a notice period of two weeks from receipt of the objection.
d) No activity of the customer is required for the approval of the change; it is sufficient for this purpose if the customer does not exercise the rights according to lit. b) and c), but continues to use the software.
By way of clarification, the aforementioned right to extraordinary termination and / or objection shall not apply if the change is an exclusively voluntary service provided by VP which does not restrict the previous scope of services but merely supplements it in favor of the customer or which has no effect on the scope of services provided to the customer.
§ 3 Use of the software
(1) Customer may authorize itself as well as any number of persons it uses in the performance of its activities, such as board members or employees, or subcontractors and their board members or employees, to use the software via its user accounts and name them to VP ("Users"). User Accounts may only be used by Users. The simultaneous use of a User Account by several Users is excluded.
(2) VP shall provide the Customer with the access data required for the identification and authentication of the users named to VP. The Customer shall not be permitted to provide these access data to third parties other than the respective user. The Customer shall be obliged to ensure that the respective Users also comply with this prohibition as well as with the other provisions of these GTC.
(3) Insofar as the Customer has a license that permits co-working (cf. List of Services), it shall be permitted to invite other license holders, or their respective users, to jointly work on one of the Customer's own projects. By way of clarification, co-working with third parties who do not have their own license from VP is thus prohibited. The only exception to this prohibition is the provision of read-only access to authorities, even if they do not have their own license from VP.
(4) Subject to the provisions on co-working (cf. para. 3), the Customer is prohibited from offering to a third party the planning of projects or events of the third party by means of the software as a service against payment or free of charge or from carrying out such services for third parties.
§ 4 Remuneration and payment
(1) The fee shall be calculated for the respective agreed contract term and shall be due for payment in advance. This shall apply accordingly in the event of an extension of the contract term.
(2) VP shall be entitled to adjust the charges to be paid on the basis of this Agreement at its reasonable discretion to the development of the costs which are decisive for the price calculation of the charges. The price increase due to the increase of a cost type may only be added to the charge to be paid by the customer to the extent that there is no compensation by the decreasing level of other cost types. The provisions and procedure of § 2 para. 3 lit. a) - d) shall apply mutatis mutandis. § Section 315 of the German Civil Code shall remain unaffected.
(3) VP shall be entitled to integrate external payment service providers for payment processing; the selection among the payment systems accepted by VP shall be incumbent on the Customer.
(4) The Customer is obligated to pay the fee punctually when due. In the event of payment arrears, VP shall be entitled to immediately block the Customer's user accounts. The claim to remuneration shall remain unaffected by such blocking of access. The renewed activation shall take place immediately after the arrears have been settled. The right of VP to terminate in the event of default of payment pursuant to § 5 para. 3 shall remain unaffected by such blocking.
(5) The Customer shall not be entitled to set off its own claims against claims of VP unless the Customer's claims against VP have been legally established or are undisputed or unless they are counterclaims from the same contractual relationship which are linked to the main claim within the scope of a reciprocal relationship. The same shall apply to the exercise of the right of retention. Rights arising from the contractual relationship shall not be transferable without VP's prior consent.
§ 5 Contract term and terminations
(1) In the case of Standard Licenses, the operational provision of the agreed services shall take place at the beginning of the agreed contractual term. The provision of the services of an Enterprise License shall take place according to the individual agreement of the parties.
(2) Unless otherwise agreed, the respective contractual term of the license shall be one year. Unless the contract is terminated in writing by one of the parties with six weeks' notice to the end of the contract term or a subsequent term, it shall be extended by the original contract term.
(3) The right of the contracting parties to terminate for good cause without notice shall remain unaffected. Good cause shall be deemed to exist in particular if one of the contracting parties grossly violates the obligations expressly regulated in this Agreement, and in particular if insolvency proceedings are opened with respect to the assets of the other contracting party or if grounds for opening insolvency proceedings within the meaning of the InsO exist with respect to the other contracting party. Furthermore, good cause shall be deemed to exist if the customer is in default of payment of the fee or a not insignificant part of the fee for more than four weeks. For the customer, an important reason may be, for example, a significant shortfall in the availability of the software; this is regularly assumed to be the case if the shortfall is more than 20 %.
(4) Any notice of termination must be in writing - by way of clarification not only for evidentiary purposes.
§ 6 Defects of the software and malfunctions
(1) Defects in the Software shall be assigned by VP to one of the defect classes set out in para. 2 after the Customer has notified VP of the defect. The same shall apply to other disruptions in the ability to use the software. Defect claims shall be governed by the law on defects under the lease agreement.
(2) The reported defects / faults of the Software shall be classified by VP as follows:
- Error class A: Errors of error class A are those that prevent or impair the function of the entire software system or are capable of endangering the functions or system stability of the software.
- Error class B: Errors of error class B are, unless they represent insignificant errors of error class C, problems or disturbances of the software which affect one or more specific, distinguishable functionality(s) of the software, but which do not prevent or impair the function of the entire software system or are capable of endangering the functionality or system stability.
- Error class C: Errors of error class C are insignificant problems or malfunctions of the software that affect a specific, distinguishable functionality of the software.
(3) If the Customer contacts VP regarding a defect or malfunction of the Software, it shall be obligated to describe and limit the defect or malfunction precisely and, within the scope of this notification, shall follow the instructions provided by VP, if any. If necessary, Customer shall use checklists provided by VP when reporting the defect or malfunction.
(4) The Customer's right to terminate the contract due to non-granting of use pursuant to Section 543 (2) Sentence 1 No. 1 of the German Civil Code shall be excluded unless the production of the contractual use is deemed to have failed or VP has fraudulently concealed the defect.
§ 7 Duties and breaches of duty of the customer
(1) The Customer shall use appropriate security measures on its own computers, in particular up-to-date virus protection programs.
(2) The Customer shall also be obligated to prevent unauthorized access to the Software by third parties by means of appropriate security measures and also to require its employees to comply with this obligation. This applies in particular to the Customer's obligation to keep the access data to user accounts secret from unauthorized third parties.
(3) If the Customer culpably violates its obligation to prevent the use of the Software by unauthorized third parties, VP shall be entitled to terminate the contractual relationship without notice and with immediate effect and to block the Customer's user accounts. Further claims of VP against the customer shall not be excluded by this.
(4) If the Customer culpably violates the prohibition pursuant to § 3 (4), the following shall apply:
a) Customer shall pay VP liquidated damages in the amount of the price of a business license plus value-added tax (cf. List of Services).
b) However, the customer shall be entitled to prove that no damage at all has been incurred in the amount of the lump sum pursuant to lit. a) or that such damage is significantly lower than the aforementioned lump sum.
c) Likewise, VP expressly reserves the right to assert a claim for damages exceeding the lump sum pursuant to lit. a) as well as the right to assert other claims, in particular also from unjust enrichment.
d) The customer shall also be obligated to provide VP with comprehensive information about violations of its obligations under § 3, para. 4, in particular about the type, duration and scope of services rendered for third parties as well as about the amount of any consideration agreed for this purpose.
(5) The right to pursue further claims, e.g. under copyright law, and in particular other claims for damages shall be reserved in all cases.
(6) The Customer warrants that it will only use such plans, map material, etc. in connection with the Software the use of which is permitted to it - in particular under copyright law. This shall also apply in particular with regard to the passing on to third parties of plans, map material etc. processed by means of the software.
(7) The Customer is not permitted to modify, otherwise edit or duplicate the Software. Since the Customer is only granted the right to use the Software as 'Software as a Service', the Customer is also expressly not permitted to make a backup copy or any other copy of the Software. Furthermore, the customer is prohibited from translating the program code of the software back into other code forms (decompilation) as well as other types of reverse engineering of the software or its parts or production stages as well as from commissioning or permitting third parties to carry out such actions. The customer may only deviate from the provisions of this paragraph if this is permitted by mandatory law and only if VP has not made the necessary information available to the customer at the customer's request.
§ 8 Liability of VP
(1) Claims of the customer for damages are excluded. Excluded from this are claims for damages by the customer arising from injury to life, limb, health or from the breach of essential contractual obligations (cardinal obligations). Material contractual obligations are those whose fulfillment is necessary to achieve the objectives of the contract. Also excluded from the exclusion of liability shall be other claims for damages by the customer based on an intentional or grossly negligent breach of duty by VP, its legal representatives or vicarious agents.
(2) In the event of a breach of contractual obligations, VP shall only be liable for the foreseeable damage typical for the contract and not for consequential damage if the damage was caused by simple negligence, unless it is a matter of claims for damages by the customer arising from injury to life, body or health.
(3) Also excluded from the exclusion of liability shall be claims for damages as a result of the violation of data protection provisions which are based on an intentional or grossly negligent breach of duty by VP, its legal representatives or vicarious agents.
(4) The restrictions of the preceding paragraphs shall also apply in favor of the legal representatives and vicarious agents of VP if claims are asserted directly against them.
(5) Liability for loss of data shall be limited to typical recovery expenses.
(6) Insofar as the Customer uses the Software to create safety concepts or similar, regardless of whether this is done on the basis of legal obligations or official requirements vis-à-vis the Customer or not, VP shall not assume any warranty that a sustainable and lawful safety concept or similar is created on the basis of the Software. The software is purely a tool for event planning and expressly not a tool for risk assessment in the context of the creation of security concepts or similar. If the customer has to carry out risk assessments or similar, this is to be carried out exclusively by the customer itself. By way of clarification, the software also does not offer the possibility of a plausibility check with regard to a risk assessment carried out by the Customer - by whatever means; it also neither warns of the non-fulfillment of concretely required security measures nor confirms the fulfillment of such. In this respect, VP shall also not assume any liability in the event that damage is caused to the Customer or third parties as a result of objectively defective planning services by the Customer, in which the Customer has made use of the Software.
§ 9 Data protection and confidentiality
(1) Insofar as VP obtains access to personal data of the Customer or the Users in the course of providing its services (e.g. in the course of providing and operating the software or rectifying defects or malfunctions) and processes such data for the purpose of handling this contractual relationship, this shall be done exclusively on behalf of the Customer. The details of the commissioned processing are regulated in a commissioned data processing agreement to be concluded between the contracting parties.
(2) The access data required to register for a user account shall consist of the e-mail address of the respective user and a self-selected password. The Customer warrants that the transmission of the respective User's e-mail address to VP is in compliance with the relevant applicable data protection provisions. Customer shall ensure that VP is authorized to use the e-mail address for purposes of identification and authentication of the respective User in the context of the use of the Software.
(3) VP shall treat as confidential all information and data made available to VP by the Customer in the course of the performance of this contractual relationship. VP shall also be obliged to take suitable precautions to prevent unauthorized access by third parties to the Customer's information and data; this obligation shall continue to apply for three years beyond the end of the contract between the Customer and VP.
(4) VP shall be obligated to impose confidentiality vis-à-vis third parties also on its employees and vicarious agents.
(5) A confidentiality obligation pursuant to para. 3 shall not apply insofar as VP is obliged to disclose the confidential information by law or on the basis of a final or non-appealable decision of an authority or court. VP shall inform the Customer without undue delay of its obligation to disclose, unless such information is prohibited by law or by a final and absolute decision of an authority or court.
(6) The Customer shall be obligated to store the software itself as well as the access data required for use securely and protected from access by third parties and to obligate the users accordingly
§ 10 Miscellaneous
(1) Insofar as written form is stipulated within the scope of these GTC, Section 127 (2) of the German Civil Code (BGB) shall apply.
(2) These GTC shall apply exclusively; the validity of conflicting, deviating or supplementary terms and conditions of the customer shall be excluded. This shall also apply if VP has not expressly objected to them or if VP performs for the customer without reservation in the knowledge of the customer's conditions.
(3) VP shall be entitled at its reasonable discretion to amend these GTC from time to time in the event of changes in the law, changes in case law or a change in the economic circumstances. VP shall inform the Customer of such planned changes in writing in due time, e.g. within the scope of access to the Software via the Customer's user accounts. The procedure pursuant to § 2 para. 3 of these GTC shall apply accordingly.
(4) Outside of the procedure outlined under para. 3, amendments and supplements to the contractual relationship between the Merchant and the Customer, including these GTC, shall require the written form in order to be effective. This shall apply accordingly to this written form clause.
(5) The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(6) If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance and jurisdiction shall be Düsseldorf.
(7) If a provision of these GTC is invalid, the remaining provisions shall remain unaffected. The invalid provision shall be deemed to be replaced by a provision that comes as close as possible in economic terms to the meaning and purpose of the invalid provision in a legally effective manner. The same shall apply to any loopholes.