The following "General Terms and Conditions" apply to all contracts between Octoscreen GmbH as the service provider (hereinafter referred to as "Contractor") and its clients, unless otherwise expressly agreed in writing or legally mandated. These terms and conditions apply exclusively to business customers.
Conclusion of contract
A contract that obliges the contractor to provide services always requires to be in text or written form according to §§ 126, 126a BGB.
Scope and execution of the order
The scope of the services to be provided by the contractor is determined by the order granted, which has been accepted by the contractor in writing or in text form.
The order will be executed in accordance with the principles of proper professional practice.
The contractor will assume the facts provided by the client, particularly numerical data, to be correct.
The examination of the accuracy, completeness, and appropriateness of the submitted documents and numbers is not part of the order, unless explicitly agreed in writing.
Verbal information
If the contractor is required to present the results of their work in writing, only the written representation is decisive. Oral statements and information are only binding if confirmed in writing.
Use of the software, accounts
The contractor provides the client with a paid access to her software for the duration of the contract.
The specific scope of access and usage options is derived from the contractual agreement or the submitted and accepted offers. If the usage capability of the software falls short of what was guaranteed in the service description, this must be reported to the contractor immediately and explained. The contractor will eliminate the circumstances leading to this as quickly as possible, usually within 24 hours of becoming aware.
The contractor grants the client a non-exclusive, non-transferable right to use the software in the contractually agreed scope for the duration of the contractual relationship. Any usage that exceeds the contractually agreed scope, especially providing the software to third parties or using the software for third parties, is not permitted and requires prior written consent from the contractor.
The client may only use the software specifically according to its intended purpose and for his own purposes.
Responsibility for the content
As part of the software provision, the client has access to online storage space. It is up to the client what content they fill this storage space with. Therefore, the content of the storage space is solely their responsibility.
In particular, they must ensure that none of the content stored by them violates any third-party rights or other legal provisions. If any of the uploaded content does violate this, the client is solely responsible for it. The contractor does not conduct ongoing checks of the content uploaded by the client.
The client is also obliged to check the data and content they upload for viruses or other harmful properties beforehand.
If the client fails to comply with these obligations or there is reasonable suspicion of such, the contractor is entitled to temporarily deactivate the client’s access until the matter is clarified.
Availability and maintenance for the content
The contractor guarantees a software availability of 95% per calendar year. Planned maintenance work, which has been announced to the client at least 48 hours in advance, is not included in this calculation. Only significant limitations in the usability of the software are considered non-availability; minor functionality restrictions or disruptions do not qualify.
The software is continuously maintained and optimized by the contractor. The client agrees to assist the contractor in this regard. For this purpose, the contractor is also entitled to occasionally access the accounts set up for the client.
Involvement of third parties
The contractor is entitled to involve employees selected by her, qualified third parties, and data processing companies for the execution of the order. In particular, she is entitled to appoint suitable subcontractors according to her qualified assessment and to make use of them to fulfill her obligations arising from the contractual relationship.
The planned engagement of subcontractors must be reported to the client without delay, naming the specific subcontractors envisaged and the specific intended area of activity. The client can only object to the inclusion of the specific subcontractor for justified reasons.
When involving third parties, the contractor must ensure that they commit to confidentiality in accordance with clause 9.
Liability and Limitation
The contractor is liable for its own actions and for the fault of its vicarious agents only to the extent that intent or gross negligence is present. Liability for simple negligence is generally excluded unless it involves a breach of one of the essential duties that are fundamentally the main subject of the contract (cardinal duties).
The contractor is fully liable for intentional or negligent violations of life, body, or health.
Unless a claim for damages by the client is subject to a shorter limitation period by law, it will expire three years from the time the claim arose.
The client indemnifies the contractor from any liability for damages caused by third parties involved in the contractual relationship. This applies only if the third party was engaged at the request or with the consent of the client.
Due to the error possibilities in publicly accessible sources, restrictions or blocks of automated queries by information providers, format changes, transmission errors, misinterpretations, and the processing of data by software processes, no complete and error-free information delivery can be provided within the scope of the monitoring service despite all quality assurance measures taken. The contractor does not guarantee the availability of information from the monitored sources, as they are not within the contractor's control. This also applies to information and data transmitted by third parties, regarding their completeness, accuracy, or timeliness.
The services provided by the contractor depend partly on the compilation of keywords. If the contractor has these keywords compiled by the client or by third parties commissioned by them or with their consent, the contractor is not liable for deficiencies that are a consequence of inadequate keyword compilation. The same applies if the client compiles the keywords themselves.
The contractor is not liable for the loss of data resulting from faulty or omitted data backup by the client.
The services of the contractor relate exclusively to online publicly available information. Information that is only made available in other ways, such as postings in town halls or similar, is not included in the contractor's service package.
The provisions set out in paragraphs 1 to 8 also apply to persons other than the client, insofar as there are exceptional circumstances in individual cases that establish contractual or pre-contractual relationships between the contractor and these persons or if these persons are otherwise included within the scope of the contractual relationship.
Confidentiality towards third parties, data protection
The parties mutually undertake to maintain confidentiality regarding all confidential information that becomes known to them in the course of the contractual relationship.
This means in particular that the information disclosed in the course of the contractual relationship may generally not be used for purposes other than those contractually agreed upon by the parties.
Any other use or disclosure of the information is only permitted if the contractor has consented.
Confidential information includes economically, legally, tax-wise, or technically sensitive information. Confidential information can be information that is identified in any way as confidential or legally protected or whose confidentiality arises from the circumstances. The term includes all forms of media such as materials, documents, notes, files, presentations, functions, as well as oral communications.
The obligation of confidentiality does not extend to publicly known information. This includes information that was demonstrably accessible to the other party prior to its disclosure or that became publicly known during the term of this agreement without any fault of the other party. This also applies in particular to industry-standard search terms/keywords that are provided by the client. Provided these do not exceed industry-standard public terms, the contractor is expressly permitted to continue using these in the future.
If the client discloses data from third parties (e.g., customers, clients, etc. of the client) to the contractor, the client must ensure compliance with data protection and confidentiality and indemnifies the contractor against any claims arising from this.
The obligation of confidentiality does not apply to courts and authorities, as far as there is a legal obligation to disclose the information or the respective information is relevant in a civil legal proceeding between the parties or one of the parties and a third party. The other party must be notified immediately regarding any disclosure of confidential information.
In this sense, the parties include both the client and the contractor as well as all associated companies, bodies, members, advisors, and any other third parties working for them.
In the event of a culpable violation of the aforementioned obligations, the client is to pay the contractor a contractual penalty of EUR 100,000.00.
The assertion of further claims, in particular for damages and injunctions, is not affected by this. However, the contractual penalty will be offset against any damages that may be payable.
The obligation of confidentiality continues for two years after the termination of the business relationship between the contractor and its client.
The client remains the data controller within the meaning of the GDPR concerning the personal data entered into the software. The contractor processes this data exclusively on the instructions and orders of the client (order processing).
Determination of remuneration
Unless otherwise agreed in writing in individual cases, all prices specified by the contractor are net fixed prices and include the services listed in the price list.
The contractor reserves the right to adjust prices appropriately if the costs for the provision of services increase after the conclusion of the contract in a verifiable and not only temporary manner. Such a price adjustment is only permissible once per calendar year and must be communicated to the client in writing at least two months before it takes effect. In case of a price increase of more than 5% per year, the client has the right to terminate the contract within 4 weeks of receiving the notification at the time the price increase becomes effective.
Invoices can only be contested by commercial clients within 4 weeks (from the date of invoicing). After the expiration of 4 weeks (from the date of invoicing), the invoice shall be deemed accepted by the client in terms of its basis and amount.
The contractor is entitled to invoice its services monthly or quarterly in advance with immediate due date.
Set-off against a claim for remuneration of the contractor is only permissible with undisputed or legally established claims.
Advance payment
The contractor may demand an advance for fees and expenses that have already been incurred or are expected to arise.
The contractor is particularly entitled to invoice its services quarterly in advance and to request a quarterly advance payment from the client for this purpose.
These advance payments are calculated on a forecast basis. Should the contractor actually incur higher or lower costs during the service period, these will be settled at the end of the service period.
If the requested advance payments are not paid, the contractor may suspend further activities for the client after prior notice until the advance is received. The contractor is obliged to inform the client of its intention to suspend activities in a timely manner.
Contract duration / Termination
Contracts with a minimum term of 6 months will be extended by 6 additional months unless terminated by one party with one month's notice at the end of the minimum term or at the end of the respective extension period.
Contracts with a minimum term of 12 months or 24 months will be extended by 12 additional months unless terminated by one party with 3 months' notice at the end of the minimum term or at the end of the respective extension period.
The contract does not terminate due to the death, the occurrence of incapacity to act of the client, or in the case of a company, its dissolution.
The contract may be terminated extraordinarily by either contracting party in accordance with §§ 626 ff. BGB; the termination must be made in writing. If deviations from this are to be made in individual cases, an agreement in written or text form, which must be created separately and should be available to the parties at the time of contract conclusion, is required.
The contractor reserves the right to terminate the contract extraordinarily with three months' notice to the end of the month if it can no longer fulfill the services offered for important reasons. Important reasons may include: significant increase in server costs, substantial rise in personnel costs, or other unforeseeable, significant cost increases that make the continuation of the contract under the agreed conditions unreasonable for the contractor.
Storage, issuance, and retention rights of work results and documents
The contractor may refuse to release the results of work until they have been satisfied regarding their remuneration and expenses. This does not apply if the withholding, under the circumstances, particularly due to the relatively minor amounts owed, would violate good faith.
Work results are all works created by the contractor in the context of the contractual relationship, particularly documents, project outlines, presentations, and drafts.
Other obligations of the client
The client is required to cooperate as far as it is necessary for the proper execution of the order.
The client agrees to only share the results of the contractor's work with their written consent, unless consent for sharing with a specific third party is already evident from the content of the order.
If the contractor uses data processing programs in the client's premises, the client is obligated to comply with the contractor's instructions regarding the installation and application of the programs. The client may not distribute the programs. The contractor retains ownership of the usage rights.
If an employee of the client who has used the platform provided by the contractor leaves the company during the contract period or is unable to continue using the program for other reasons, the client has the option to transfer the account used by the departing employee to the person who will henceforth be responsible for using the program. The company has no right to the creation of a new account under these circumstances and must continue to use the existing one. The client is obligated to promptly inform the contractor of such changes and ensure that the login data of the departing employee is not used further.
Failure to cooperate and acceptance delay of the client
If the client fails to provide necessary cooperation or delays acceptance of the services offered by the contractor, the contractor is entitled to set a reasonable deadline of at least 14 days with a declaration that they refuse to continue the contract after the deadline expires. After the unsuccessful expiry of the deadline, the contractor may terminate the contract without notice. The contractor's right to compensation for additional expenses incurred due to the delay or the client's failure to cooperate, as well as for the damage caused, remains unaffected, even if the contractor does not exercise the right of termination.
Applicable law and place of performance
For the contractual relationship, its execution, and the claims arising from it, only German law applies.
The place of performance is the place of professional establishment of the contractor; the place of jurisdiction for all claims arising in the broadest sense from the contractual relationship between the client and the contractor is exclusively Munich.
Severability Clause
If one or more of the preceding provisions are entirely or partially invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by a valid one that comes closest to the intended goal. The same applies in the event of a gap. The parties agree to cooperate in making an appropriate replacement. If an amicable solution is not possible, a valid provision that comes closest to the economic purpose of the replaced provision shall be deemed agreed in place of the invalid or unenforceable provision.