GENERAL TERMS AND CONDITIONS OF MAPEGY GMBH FOR THE USE OF MAPEGY SERVICES
Applicability. These General Terms and Conditions shall apply for the use of services provided by MAPEGY GmbH, Bismarckstrasse 10-12, 10625 Berlin, Germany (“MAPEGY”) in accordance with the scope of services agreed in the offer. The services of MAPEGY under this contract shall be collectively referred to as “MAPEGY.SERVICES”. General terms and conditions of business of the licensee shall not apply.
MAPEGY.Services. MAPEGY shall provide the licensee with access to use the modules agreed in the offer. Such access shall enable the licensee to use the databases created by MAPEGY for each module (the “MAPEGY Database”) as well as retrieve selected information from the Internet and databases operated by third parties (the “Selection”). MAPEGY shall provide the licensee with an overview of the information sought in electronic form based on the licensee’s selection criteria (the “Analysis Results”). These General Terms and Conditions regulate the use of MAPEGY.Services, in particular the online access of the MAPEGY Database or individual parts thereof, the modalities of the Selection, and the use of the Analysis Results.
Further Development and Modifications. MAPEGY reserves the right to make modifications in order to adjust MAPEGY.Services to the current state of technology and optimize the system, in particular in order to improve user-friendliness, as well as modify the content if this is necessary for correcting errors, updating, completing, or optimizing the system, or for licensing reasons. If this results in not just an insignificant detriment to the interests of the licensee in view of the agreed services, the licensee shall be entitled to choose to reduce the licensing fees in accordance with the change to the equivalent performance or immediately terminate the agreement concerning the affected module within eight weeks after the change has become effective. To the extent that MAPEGY extends the services under the agreement, MAPEGY shall submit a corresponding offer to the licensee.
Access Data. The licensee shall access the agreed modules by using the login details provided by MAPEGY. To the extent that the licensee should grant its employees access to usage data in agreement with MAPEGY, the licensee shall carefully select such employees, monitor them and familiarize them with the content of these General Terms and Conditions, in particular the obligations under section 4. The licensee shall specify the names of the users. The login details are to be kept confidential and may not be disclosed to unauthorized third parties. The licensee shall be responsible for any activities carried out using its login details to the extent that the licensee is responsible for such use. The licensee shall immediately notify MAPEGY of any misuse of the login details or in the case of any suspicions of such misuse. MAPEGY shall be entitled to temporarily block the access data of the licensee overall or for individual users if there are concrete indications that the licensee is breaching or has breached these General Terms and Conditions, applicable laws, or any other regulations, in particular any terms of use of third parties, or if reasonable suspicions exist in this respect, or if any other justified interests in blocking the access exist, e.g. in the case of suspicions of misuse by unauthorized third parties. When making the decision to block and unblock the access, MAPEGY shall take the special interests of the licensee, the functional capability of MAPEGY.Services and their integrity, as well as the interests in protection of third parties into consideration.
Technical Requirements. The licensee shall be responsible for establishing, maintaining and, if necessary, further developing the required IT infrastructure in its area of operations. The licensee shall bear any connection and data transmission costs. MAPEGY.Services can be used as “Software as a Service.”
Availability. To the extent within its sphere influence, MAPEGY shall provide MAPEGY.Services with an average availability of 97 % per calendar year, measured on the basis of the availability at the point of interconnection to the Internet. When calculating the availability, any periods of unavailability due to scheduled or unscheduled urgent maintenance work shall not be taken into account.
Assessment of Analysis Results. When providing MAPEGY.Services, in particular when selecting and maintaining the content of the MAPEGY Database as well as the Selection, MAPEGY shall use the care that is customary in the industry. When providing the services, MAPEGY must, however, rely on the knowledge available on the Internet against the background of the current state of science and technology as well as the existence and availability of databases of third parties and all types of registers. The licensee is required to assess the plausibility of the Analysis Results in accordance with the intended purpose.
Invoicing. For the use of MAPEGY.Services, the agreed licensing fees shall be invoiced in advance. The invoiced amount shall be due for payment after receipt of the invoice and is to be paid by bank transfer to the bank account specified on the invoice within 14 days.
Protection of the MAPEGY Database and Analysis Results. The licensee acknowledges that the MAPEGY Database is a database work created by MAPEGY or a database within the meaning of Paragraphs 4(2), 87a(1) German Copyright Act (UrhG). The MAPEGY Database and the content made available using the Selection are protected by copyright or cannot be used unrestrictedly without further permits due to the rights of other third parties. The licensee shall be obligated to observe any existing property rights and licensing terms of third parties.
Granting of Rights of Use. In accordance with the offer and the following provisions and under the condition of full payment according to section 0, the licensee shall be granted a simple and non-exclusive right for the duration of the contract to use the agreed modules according to the contract, including the right to use the Software as a Service within the scope of executing this contract. The licensee shall be obligated to retrieve, save and use the Analysis Results only for its own use (“Dedicated User License”) unless otherwise agreed, e.g. a license to use the Analysis Results for different internal customers within the scope of a shared service center license or for different external customers within the scope of a consulting license.
Information Broker. Licensees, who work for a single client as an information broker within the scope of this license, may only disclose the Analysis Results to their client if they ensure in their general terms and conditions of business that the obligations imposed under these General Terms and Conditions shall be observed.
Content of the Right of Use. The right of use entitles the licensee to conduct research in the MAPEGY Database and access to read, download and save the Analysis Results on a computer or to the user’s memory space assigned in-house, as well as to print the Analysis Results and include them in one’s own collection, reports or presentations, etc. for in-house purposes (“internal use”). The licensee shall be entitled to reproduce, make available or forward selected parts of the Analysis Results, e.g. tables or graphics, to recipients outside of the licensee’s enterprise for the purposes of professional exchange; this shall include any use in technical forums and social media to the extent that the type and scope of the depiction of any parts of the Analysis Results ensure that the partial use of the Analysis Results serves the further development and application of the knowledge and will not undermine the commercial interests of MAPEGY in granting Dedicated User Licenses (“external use”). Any sale or other form of commercially using the Analysis Results for or by third parties is prohibited.
No Systematic Reproduction. The systematic reproduction or other exploitation of an element, which is fundamental in terms of the type and scope of such element, of the MAPEGY Database or other databases to which the licensee gains access on the basis of this contract shall not be permitted. The systematic and automated retrieval of documents, the creation of systematic collections from the Analysis Results as well as the systematic disclosure of documents or systematically granting third parties access to them shall be prohibited. Any statutory rights of use shall not be restricted by this contract.
Proprietary Notices. Any trademarks, company logos, other marks or protection notices, copyright notices, serial numbers as well as other means of identification must remain unchanged in the electronic form and in hard copies.
Indemnification. The licensee shall indemnify MAPEGY against any claims of third parties, which such third parties assert against MAPEGY due to a breach or endangerment of their rights caused by the use of MAPEGY.Services by the licensee unless the licensee is not responsible for the basis of such claims.
Technical Data. MAPEGY collects, processes and uses technical data on the type and manner of use of MAPEGY.Services, in particular the transmitted Analysis Results and the inquiries in this regard, the transfer times and duration as well as additional technical parameters in order to ensure the proper functioning of MAPEGY.Services, and performs analyses for the purpose of further developing MAPEGY.Services and new products.
Personal Data. Personal data, which is required for the personalized login data when using MAPEGY.Services, shall only be used for the purpose of providing the contractual services, i.e. for displaying Analysis Results and maintaining the search history for the user. Moreover, MAPEGY shall only use personal data within the scope of applicable law, in particular collect, process and use such data for billing purposes.
Hosting. MAPEGY provides the contractual services by using its own IT infrastructure as well as Cloud services of an external service provider. The servers used in this respect are located in Germany, the EU and the European Economic Community, but can also be located in other countries. The external service provider has been obligated to guarantee the security of the Cloud infrastructure.
Duty to Instruct Users. The licensee shall inform users when providing the login details of how their personal data required under this contract, in particular their personalized search history, will be processed and used by MAPEGY during the term of this contract and for a limited time period required for the settlement after the termination of the contract.
Confidentiality. The parties shall keep confidential any information of the other party, which is designated as confidential or is to be considered confidential based on the circumstances. This obligation shall not apply for any confidential information, which was already verifiably known to the recipient at the time of concluding the contract or became known thereafter from a third party without thereby breaching a duty to maintain confidentiality, which was publicly known at the time of concluding the contract or become publicly known thereafter as long as this is not based on a breach of this contract, or which must be disclosed on the basis of statutory obligations or by order of a court or public authority. The parties shall only disclose confidential information to such advisors or employees, which is required in order for them to execute a contract and to the extent that such individuals have been obligated to maintain the confidentiality even after they leave the enterprise.
Warranty of Functional Capability of the MAPEGY Database. MAPEGY guarantees the proper functional capability of the MAPEGY database.
Warranty for the Output of Analysis Results. MAPEGY guarantees the output of the Analysis Results provided that the underlying sources of information are available. To the extent that these are not supplied by the MAPEGY Database, for which the functional capability is guaranteed, Analysis Results cannot be displayed, e.g. in the case of a partial or total failure of the Internet or databases of third parties.
Exclusion of Liability for Transmission. MAPEGY shall not be liable for the security and existence of data communications that take place via communication networks of third parties. MAPEGY shall also not be liable for any disruptions to the transmission of data, which result from technical defects or configuration problems on the licensee’s side.
Exclusion of Liability for Content. MAPEGY shall not be liable for the Selection or the accuracy or completeness of any other content in terms of its scientific, legal, technical or other substance because this does not fall within the sphere of influence of MAPEGY. In this respect, MAPEGY shall only act in the capacity of an access provider. MAPEGY does not check the accuracy and completeness of such content. The inclusion of excerpts or parts of documents in the MAPEGY Database for the purposes of simplifying the search, providing a better overview, or an otherwise better handling shall also not result in MAPEGY adopting this content as its own.
Unlimited Liability. MAPEGY, its legal representatives, executive employees or vicarious agents shall be liable without limitations in accordance with the statutory provisions of the Federal Republic of Germany for any damages resulting from injury to life, body or health, in the case of willful intent or gross negligence, in accordance with the German Product Liability Act (Produkthaftungsgesetz) as well as in the case of assumption of any guarantees.
Limited Liability. MAPEGY, its legal representatives, executive employees or vicarious agents shall only be liable for slight negligence in the case of a breach of an essential duty under this contract. An essential duty is any duty, which is necessary for the fulfillment of the contract, would call into question the achievement of the purpose of the contract if breached, and the observance of which the licensee can therefore regularly rely upon. In such cases, the liability shall be limited to typical and foreseeable damages. Any liability in this respect for indirect damages, especially for loss of profit, shall be excluded. In all other cases, liability shall be excluded.
Ordinary Termination. The term of this contract shall be one year .
Immediate Termination. The right to terminate this contract with immediate effect for good cause shall remain unaffected. MAPEGY shall especially be entitled to terminate this contract immediately in the case of a severe breach of section 2.1, 4.3 or 4.6 of this contract or if the licensee repeatedly defaults in the performance of significant payment obligations under this contract.
Transfer of Claims. The licensee may only transfer claims against MAPEGY to third parties after obtaining the written consent of MAPEGY.
Offsetting. The licensee may only offset against claims that are uncontested or have been recognized by declaratory judgment.
Applicable Law. This contract shall be solely governed by German law in exclusion of UN sales law.
Jurisdiction. If the customer is a merchant, legal entity under public law, or special fund under public law, the exclusive venue shall be Berlin.
Amendments or Additions. Any amendments to this contract or declarations to the other contractual partner must be made in writing.
Invalidity of Individual Clauses. If any provision of this contract is or becomes invalid, in whole or in part, the validity of the remaining provisions shall not be affected.
