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General terms and conditions of the DiBooq desktop app

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Dibooq GmbH
Heinrich-Mann-Allee 3b
14473 Potsdam (Germany)
Germany

 

The present general terms and conditions of the DiBooq desktop app (” GTC “) apply to the services of Dibooq GmbH, Heinrich-Mann-Allee 3b, 14473 Potsdam, Germany (also referred to as ” we ” or ” DiBooq “) that are provided to customers ( hereinafter “ customer ” or “ you ”). With our services and our terms and conditions, we are aimed exclusively at entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB). Your general terms and conditions do not apply, regardless of whether you expressly refer to them or we do not expressly contradict them. Your general terms and conditions will only become part of this contract if we expressly agree to them. Individual agreements between us in offers, order confirmations, declarations of acceptance, etc. take precedence over the provisions of these terms and conditions.

 

preamble

If you have concluded a license agreement with us for the provision of services or have placed your order via our order process including the subsequent order confirmation (hereinafter also referred to as “Subject to special agreements in the license agreement , in your order or in the order / order confirmation, you acquire the services and rights specified in these terms and conditions and their annexes.

If we process personal data for you and your company in the context of the contractual relationship with you, this processing takes place on the basis of the order processing contract in accordance with. Art. 28 GDPR (“AVV“), which becomes effective as soon as this contract comes into effect. The applicable GCU is available on our website at www.dibooq.com/de/avv.

 

§ 1 subject matter of the contract

The following services are part of the contract:

 

Software / SaaS services

  • The DiBooq desktop app is a SaaS (Software as a Service) solution (hereinafter also ” software “).
  • An overview of the entire service portfolio of the software results from the service description, the current version of which is available on our website www.dibooq.com/de/leistungsbeschreibung. If necessary, we will also provide you with the interface to the software.
  • Thanks to the flexible software architecture and a flexible license model, the software can be individually adapted to your needs and your respective IT infrastructure.
  • We make our software services available to you as part of a “subscription model”, legally seen as a rental item, for the duration of our contractual relationship.
  • The specific service components that we provide in the contractual relationship with you result from the license agreement, your order or from the order / order confirmation.

 

Web & server hosting

  • If expressly contractually agreed, we also offer you web & server hosting services in relation to our SaaS services. Our web & server hosting services include, in particular, the provision of an IT environment for our software. This IT environment contains the necessary server services, data lines as a connection between the locations of the servers and your workstations, as well as the services necessary to operate the software. The IT environment is created within one or more servers. These servers are located locally with us or in rented data centers. They can also consist of virtual private servers or be rented from professional hosting providers.
  • As part of our web & server hosting services, we provide a sufficiently large storage space for storing property and occupancy data, which dynamically adapts to the respective user requirements.
  • We also ensure that your stored data can be accessed via the Internet. You remain the sole authorized user of the data and can request the surrender at any time. However, you are not entitled to let a third party use your storage space. Upon termination of our contract or upon termination of our web & server hosting services, we will, upon request, give you all the data stored in the storage space allocated to you by sending it over a data network. However, you are not entitled to receive software that is suitable for using the data.

 

Support & monitoring services

  • Furthermore, if expressly agreed, we offer additional support services for our software. These support services consist in particular of
  • security monitoring for the timely detection and elimination of security vulnerabilities,
  • importing security updates,
  • the information about major updates (upgrades).
  • In addition, we guarantee direct accessibility for urgent, usually separately remunerated support in support cases that are not covered by our other service components. Such a support case can exist if you have questions in connection with the use of our software.
  • You can reach us as follows:
  • Telephone support Monday to Friday from 10:00 a.m. to 6:00 p.m. at +49 179 4918329, or
  • 24/7 email support with a response Monday to Friday from 10:00 a.m. to 6:00 p.m. at hello@dibooq.com .

 

§ 2 remuneration for our services

  • (1) You can basically use our services. at the conditions of the selected price model, which can be viewed at www.dibooq.com/de/leistungsbeschreibung or according to the conditions of the offer individually created for you.
  • Each remuneration is plus Sales tax at the statutory rate at the time and place of the provision of the service.
  • The remuneration for the services to be provided by us is to be paid in advance for the billing period you have chosen. If our remuneration is calculated on a commission basis, an invoice is usually issued monthly in arrears.
  • Our invoices are due upon receipt by you and are to be paid without deductions within fourteen calendar days.

 

§ 3 Duration of the contract

  • The contract for the software in its basic function is concluded for an indefinite period. A termination is possible at any time and without observing a notice period. The termination can take place by corresponding termination of the services in your admin area (deletion of the account).
  • An upgrade of the selected price model or the booking of special features, if offered by us, is possible at any time. The reduction in the number of users or the downgrading of a price model or the cancellation of upgrades and special features are possible with a period of one month to the end of the respective selected term. The costs paid / to be paid for the current period will not be reimbursed.
  • When the termination of the contract for the software in its basic function takes effect, your account created in the DiBooq desktop app will be deleted. You can export the content processed with our services until it is deleted. After this we will completely delete your access. Support services in connection with the termination can be provided by us on request and, if necessary, against separate payment.
  • Content that you have exchanged with the DiBooq mobile app and with other DiBooq desktop app users will remain with them even after your account has been deleted.
  • The right to extraordinary termination of this contract for an important reason remains unaffected.

 

§ 4 principles for the provision of our services

  • With our software and its functions, we only provide you with a technical basis for the purposes to be mapped (see in particular the service description at www.dibooq.com/de/leistungsbeschreibung . We are not responsible for the actions carried out with our software or for the content processed with our software. The agreements and contracts that you have concluded with your customers, partners, employees, etc. or the law apply exclusively to all actions and content processed by you with our software.
  • The rental law regulations apply to the use of our software. Maintenance measures such as updates, patches and hotfixes are part of our service. Further support is offered with a corresponding agreement. In addition to the maintenance measures, the statutory rent warranty law applies.
  • Adjustments, changes and additions to the software as well as measures that serve to identify and remedy malfunctions will only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons. We will generally carry out major maintenance work that could lead to a malfunction of the software. outside of normal business hours.
  • The availability of the software under this contract is 97.5% on an annual average including maintenance work. Availability will not be impaired or interrupted for more than two calendar days in a row.
  • You may not transfer our services to third parties for commercial use.
  • We are entitled to have our services provided by third parties and subcontractors.
  • We reserve the right to change our services and the related documents and attachments, taking your interests into account, to adapt and to increase or reduce the scope of functions, provided that we do not violate our contractually assumed main service obligations. We will inform you in advance of any major modifications and settings that change the contractual relationship. You have the right to object to changes. Should you do this, we will try to find alternatives together. If these are not found, both parties have the right to extraordinary termination of this contract.
  • (8) In the event of force majeure, we are released from our obligation to provide services for the corresponding period, provided that it is actually not possible for us to provide the service. Force majeure means fire, explosion, flood, war, blockade, embargo, pandemic and industrial action for which we or a subcontractor are not responsible.
  • You are responsible for the actions of your users and are responsible for them as you do for your own actions.
  • You can use links or functions in our software to access third-party websites and software that are not operated by us and for which we are not responsible. Such links or functionalities are either clearly marked or recognizable by a change in the address line of the browser or a change in the user interface.

When using our software, it is prohibited:

  • Violate third party property rights such as trademarks, copyrights and naming rights,
  • harass other customers and third parties,
  • to use documents, files, third party IT systems and data in connection with our services that contain malicious codes or viruses,
  • To use mechanisms, software and scripts that go beyond the functionalities and interfaces provided, in particular if this blocks, modified, copied or overwritten our services, and
  • our services through data modification (§ 303a StGB), computer sabotage (§ 303b StGB), falsification of evidence-relevant data (§ 269, 270 StGB), suppression of evidence-relevant data (§ 274 StGB), computer fraud (§ 263a StGB), spying on data (§ 202a StGB), interception of data (§ 202b StGB) or other criminal offenses.

 

§ 5 Your duty to cooperate for our services

The following provisions and contributions are to be provided by you to us free of charge as ancillary service obligations:

  • If necessary: Granting of the necessary rights of use to third-party software, in particular databases, server operating systems and applications.
  • If necessary: Creation of backups of the IT system and other IT components.
  • Reports of material and legal defects as well as malfunctions must contain a description of the problem (e.g. with screenshots, anonymized log files).
  • If necessary: Notification of your guidelines for remote access to your IT system.
  • In the case of security-relevant updates, we reserve the right to adjust our services at short notice. The resulting adjustments to your IT systems must be made by you. If necessary, we will provide you with support.
  • Independent and responsible integration of the software (possibly including an interface) into the customer’s existing IT system.

 

§ 6 General Liability

  • (1) Subject to separate provisions in the contract or in these GTC, in particular in Sections 6 and 7, we are liable for up to 100,000 direct material and financial damage caused by us, our legal representatives, vicarious agents and the subcontractors we employ EUR per damaging event, up to a maximum of EUR 200,000 per year of the contract period, regardless of the number of damaging events.
  • (2) In the case of simple negligence, our liability is limited to the foreseeable damage typical for the contract. Outside of the breach of essential contractual obligations, our liability for compensation for indirect property damage and financial loss, in particular loss of profit, in the event of simple negligence is completely excluded. In the event of force majeure or free use of our services, our liability for simple negligence is excluded. Essential contractual obligations are those, the fulfillment of which enables the proper execution of the contract in the first place and the fulfillment of which can be relied on.
  • We have unlimited liability in the event of injury to life, body or health as well as in the event of willful or malicious action. The same applies to the written assumption of a guarantee for the quality or durability of a service to be provided by us.
  • Our liability under the Product Liability Act remains unaffected.
  • You are responsible for the actions of your employees, legal representatives, vicarious agents and any other users of our services as for your own actions.

 

§ 7 Guarantee for our services

  • In the event of material or legal defects, the statutory provisions apply, subject to the provisions in this section. Section 377 of the German Commercial Code applies. All claims for defects are subject to the condition of your immediate notification of defects in accordance with § 377 para. 1 and para. 3 HGB. Your notification of defects must be made in writing (exclusion of the electronic form).

 

Material defects

  • In the event of material defects, you are initially entitled to choose whether to repair the goods free of charge or to have a new delivery (hereinafter referred to as “subsequent performance”). If the defect cannot be remedied after two subsequent performance, you must check whether your interests can be met by an alternative solution before any termination or withdrawal.
  • In the case of rent, the no-fault liability for compensation for defects that existed in the case of leasing from § 536a Para. 1 BGB excluded.

Defects in title

  • Our services are provided free of third party rights. Please inform us immediately in text form if you become aware of the rights of third parties to our services.
  • At our request, the defense against the claims asserted by third parties is to be left to us, all information necessary for this to be made available to us, declarations to be made and authorizations to be granted. In return, we will release you from claims for payment and damages due to the rights of third parties.
  • If our services are actually encumbered with the rights of third parties, we are entitled, at our option,
  • to eliminate the rights of third parties or their assertion (e.g. by paying license fees), or
  • to change our services in such a way that the rights of third parties are no longer violated.

 

Generally

  • Claims for defects do not apply if you have made changes to the services without our prior consent or if you use the services for a purpose not covered by this contract and this action is solely responsible for the occurrence of the defect.
  • All claims due to defects become statute-barred after 12 months, unless they are already limited or excluded according to the aforementioned regulations.

 

§ 8 Your right to use our services

Software usage & general

  • You receive a simple, non-exclusive right to use our services, limited in time for the duration of the contract and spatially unrestricted.
  • The group companies in your majority ownership are equally entitled to use the software. An independent authorization to sublicense or otherwise transfer your rights of use is not associated with this. This right of use ends when the group company no longer meets the requirements of an affiliated company (e.g. in accordance with Sections 15 et seq. AktG).
  • You are not entitled to display, publicly reproduce, in particular to make it publicly available, edit, redesign, translate, decompile or otherwise redesign the software. Your rights from §§ 69d Abs. 3, 69e UrhG remain unaffected.
  • We are entitled to use our services, including new releases, as well as general know-how, empirical knowledge, methods and procedures developed in connection with the contract for other purposes (making them available to third parties, as open source software, etc.).
  • Unless otherwise agreed, test and demo licenses are limited to a term of up to 30 days.

 

Open source software

  • We grant you such rights to open source software included in our services, which can be transferred to you according to the license conditions that apply to us. You are only permitted to use our services within the scope of these license conditions. We do not assume any guarantee or liability for any use beyond this.

 

§ 9 Transfer to Third Parties

  • We are entitled to transfer the contract to a legal successor or a group company affiliated with us. We will inform you about this in writing at least two months before the planned transfer.
  • A transfer of the contract to a third party requires your prior consent. In the event of your objection, the contract will continue unchanged. The objection is an important reason for us to terminate the contract for cause.

 

§ 10 confidentiality

  • As part of the cooperation, both parties gain knowledge of the other party’s or third parties’ business secrets. A trade secret is information that is neither generally known nor readily accessible to the people who usually handle this type of information, is therefore of economic value and is therefore the subject of appropriate confidentiality measures (cf. § 2 GeschGehG). A trade secret is also information that is marked as a trade secret, which is protected by industrial property rights or copyright, which falls under banking secrecy or data protection and for which there is a legitimate interest in confidentiality. Information that is known to the other party prior to disclosure, that has become known to the public after disclosure without the involvement of the disclosed party, that the disclosed party learned through an authorized third party and that the disclosed party developed itself, is not a trade secret.
  • The receiving party, as well as everyone who comes into contact with business secrets as intended, are obliged to treat the business secrets as strictly confidential and only use them or disclose them to third parties and employees if this is necessary in connection with the business purpose. In addition, the receiving party will protect the trade secrets from knowledge of third parties.
  • Objects as well as files or other intangible objects on which there are business secrets are to be deleted immediately or returned to the disclosing party at the request of the disclosing party or at the latest with the termination of the contractual relationship.

 

§ 11 final provisions

  • The assignment of individual claims from this contract requires the prior consent of the other party in writing.
  • (2) The law of the Federal Republic of Germany applies exclusively to our entire contractual relationship, excluding the UN sales law.
  • (3) The place of jurisdiction for all disputes arising from the contractual relationship is the competent court at our headquarters.
  • (4) Changes and additions to this contract must be made in writing to be effective. Changes to the contract will take effect if you do not object to a change notified to you within one month of receipt of a change notification in text form and we have informed you in advance of your right to object. If you object to the change, the contract continues to apply unchanged and we are entitled to extraordinary termination of the contract with one month’s notice to the end of the next calendar month. The text form also applies to changes to this form clause. The priority of individual subsidiary agreements remains unaffected.
  • (5) Should one of the provisions of the contract be ineffective or should the contract contain a loophole that requires regulation, this shall not affect the effectiveness of the remaining or incomplete provisions. In this case, the parties undertake to replace or complete the ineffective or incomplete provisions with provisions that come closest to the ineffective or incomplete provisions.