General Standard Terms and Conditions of uberMetrics Technologies GmbH
As of February, 9th 2017
Art. 1 General Provisions, Scope of Application
Art. 1 General Provisions, Scope of Application
These General Standard Terms and Conditions (hereinafter referred to as “Terms and Conditions”) shall apply to any present and future business relations between Ubermetrics Technologies GmbH (hereinafter “UMT”) and the customer (hereinafter “Customer”). These Terms and Conditions shall not apply to any Customers who are consumers as defined by Section 13 German Civil Code (BGB).
In particular, these Terms and Conditions shall govern the introduction, conclusion and performance of any contracts regarding the use of the services rendered by Ubermetrics Technologies GmbH.
(2) The contract is concluded between the Customer and
Ubermetrics Technologies GmbH
Tel.: +49 30 609 857 500
Fax: +49 30 609 857 509
Managing Director: Patrick Bunk
Commercial Register No. HRB 136057 Berlin (Charlottenburg)
VAT ID No.: DE278581102
(3) A contract shall only be concluded if and to the extent that UMT acknowledges an order or commences the execution of the order. The information on the Help page of the Ubermetrics website (https://delta.ubermetrics-technologies.com/help.html?lang=en) as well as the individual UMT offer shall be essential parts of each contract.
(4) No additional verbal agreements or differing written agreements exist.
(5) Any notices from UMT to the Customer and all correspondence relating to the contract shall be via the administration login email address provided by the Customer.
The Customer shall be notified at regular intervals of any new software features, training courses and seminars in a newsletter sent to this email address.
Art. 2 Performance
(1) UMT enables the Customer to use the client and application software specified on the Help page with the range of functions detailed there and based on the functional requirements also stated there. The Customer shall pay a fee to UMT therefor pursuant to Section 9. The client software shall be made available to the Customer free of charge via a Web interface Ubermetrics Delta or Ubermetrics-API. UMT shall make the application software available for use at the transfer point indicated on the Help page. In this process, the application software shall remain on the UMT server. UMT is not under an obligation to establish and maintain the data connection between the Customer’s IT system and the transfer point operated by UMT.
(2) UMT will use the latest version of the software to be delivered, provided that any software version changes are not unreasonable for the Customer in due consideration of UMT’s interests.
Art. 3 Access, Authorisation and Rights of Use
(1) The Customer shall receive an access authorisation for every registered person consisting of a user name and password. The Customer shall only disclose the user name and password to the respective authorised users and it shall otherwise be kept confidential. The authorised users shall only include the company signing the contract and its employees, but not any subsidiaries or other companies affiliated with the contracting party.
(2) The Customer shall be granted a non-exclusive right, limited in time to the duration of the contract, to access the UMT software. The Customer shall not be granted any other rights to the UMT software. The Customer shall adhere to the number of persons stated in the offer who are authorised to simultaneously access the application software kept ready for the Customer. The workstations used by the authorised persons shall meet the minimum technical requirements specified on the Help page. The Customer’s workstations shall be connected via a data connection to be set up by the Customer in accordance with the instructions on the Help page.
(3) The Customer is not entitled to use the UMT software beyond the scope permitted subject to the contract, permit any third parties to use it or make it accessible to any third parties. In particular, the Customer is not permitted to reproduce, dispose of or permit the temporary use of and, especially, to lease or lend the UMT software or any parts thereof. In each case in which the Customer negligently enables any unregistered users or third parties to use the UMT software, the Customer shall pay damages for each unauthorised user equalling 100% of the fee which would have been incurred upon conclusion of a contract during the agreed term of the contract and with the agreed search agents. UMT reserves the right to claim compensation for any further damage.
Art. 4 Participation by the Customer
(1) The Customer shall establish a data connection between the workstations which the Customer intends to use and the transfer point defined by UMT. UMT is entitled to redefine the transfer point at any time if this is required to enable the Customer to utilise the services without any problems. In this event the Customer shall establish a connection with the redefined transfer point.
(2) The utilisation of UMT’s services in accordance with the contract is subject to compliance of the hardware and software used by the Customer, including workstation computers, routers, data communication media etc., with the minimum technical requirements for the use of the current software version and familiarity of the users authorised by the Customer to use the application software with the handling of the software. The Customer shall only use such hardware and software to utilise the services of UMT which meets the minimum requirements indicated on the Help page. The Customer is responsible for configuring its IT system.
(3) If the use of the UMT software is impaired in such a manner that operation is hindered, the Customer shall inform UMT without delay.
Art. 5 Introduction to the Software Functions
(1) UMT shall give the Customer a one-off introduction as required to the operation of the software.
(2) UMT offers to provide additional support for an extra charge.
Art. 6 Service Level Agreement
(1) The Customer is enabled to use the UMT software continuously, subject to 6.4. Availability refers to the API which UMT keeps ready at the transfer point specified on the Help page.
(2) Availability shall be calculated on the basis of general availability for 24 hours per day, 7 days per week as a ratio of fault-free minutes to the total number of minutes in each month.
(3) A fault is deemed to have occurred if and when more than 5% of the API requests by the UMT Web client or direct requests by the Customer are rejected by the server.
(4) UMT may interrupt the rendering of services for a defined period of time to perform scheduled maintenance work. Such periods shall be displayed no less than 48 hours in advance within the UMT software or transmitted to the Customer in written form. If any important reasons exist which preclude such an interruption, the Customer shall notify UMT of such reasons no less than 12 hours before the scheduled interruption; otherwise the Customer shall not unreasonably withhold its consent to such interruptions.
(5) UMT shall deliver the application software to the Customer at the transfer point with 95% availability for the Customer’s use.
(6) If UMT fails to achieve the said level of availability, the Customer may receive service credits by way of compensation:
for less than 95% but more than 90%, service credits for 3 days
for less than 90% but more than 80%, service credits for 7 days
for less than 80%, service credits for 30 days.
(7) A service credit entitles the holder to use the UMT range free of charge for one day, with the range of services booked when the interruption occurred. The said service credits shall constitute the sole and exclusive compensation for any shortfall in the warranted availability. Such credits shall be requested by the Customer within a period of 30 days after the end of the month in which the shortfall in availability occurred; otherwise the Customer shall have no claim for any service credits for that month.
Art. 7 Data Storage and Copyrights
(1) UMT shall store the Customer’s search results by automated processes for the duration of the contract. The Customer may view and download lists of search results and statistics at any time.
(2) The data delivered by UMT is regularly subject to copyright of third parties. The services provided by UMT via Ubermetrics Delta or the Ubermetrics-API consist of the aggregation and the analysis of data streams and explicitly not in the sale of licenses of the original data, unless stated otherwise in the contract. The Customer acknowledges, that UMT is not permitted to grant itself any licenses for redistribution, storage, reproduction, delivery to third parties, or publication of the delivered mentions or snippets. Therefore, the Customer is obliged to verify whether he needs further licenses and to acquire licenses directly from the copyright holder, if deemed necessary. This explicitly necessary for mentions in TV, Radio and Print. The Customer must consider in these cases the Terms of Services of the content provider when known and consider further, that replication of these snippets in many countries requires further special licensing from the copyright holders.
(3) UMT shall process work potentially protected by copyright, such as blog posts and articles, on behalf of the Customer. If the Customer becomes aware of any copyright infringement, it shall inform UMT without delay thereof. In this event or if a holder of a right directly requires UMT to shorten any mentions or implement any changes in the structure or data format, UMT is free to implement such changes or remove such mentions from all results lists.
Art. 8 Data Protection and Data Security
(1) Both Parties shall comply with the applicable data protection regulations, particularly including those applicable in Germany, and impose an obligation on their employees whose activities involve data processing to maintain data secrecy subject to Section 5 German Federal Data Protection Act (Bundesdatenschutzgesetz).
(2) The Customer’s personal data shall be collected, processed and stored for the purposes of contract implementation. Such data shall only be disclosed to any third parties to the extent required to carry out the order.
(3) If the Customer collects, processes or uses any personal data itself or through UMT, the Customer is responsible for ensuring that it is entitled thereto subject to the applicable regulations, in particular, any data protection regulations, the German Federal Data Protection Act (Bundesdatenschutzgesetz) or any statutory storage periods.
(4) If the data to be processed are personal data, a case of contract data processing has been created and UMT shall comply with the Customer’s instructions (e.g. to fulfill any obligations to delete or block data). Such instructions shall be given in writing and in due time.
(5) The services provided by UMT are explicitly not available to any national security authorities or companies that intend to use UMT on behalf of national security authorities and no Customer may grant them access.
Art. 9 Fee
(1) The Customer shall pay the fees for the commissioned UMT software features indicated in the offer of UMT.
(2) By specifying the actual search terms and restricting the languages and sources, the Customer may directly influence the volume of mentions. For the search agents booked, UMT grants a maximum quota of mentions per month as specified in the UMT offer, plus any add-on mentions volume packages which may have been booked. Should the Customer exceed the mentions volume booked based on the total sum from all searches performed in one month, UMT is free to disable the search agents or, as applicable, to discontinue the collection and delivery of further mentions until the end of the same month. UMT shall inform the Customer thereof. Thereafter the Customer shall have one month to adapt the searches or acquire additional search quotas. After the end of the month granted by UMT for adapting the searches, UMT may charge additional search agents if the volume is exceeded again as at the first day of the following month to adjust the total volume of mentions to that used by the Customer. UMT reserves the right to reject searches, if they are non-executable or unreasonable for UMT on technical or legal grounds. UMT will notify the Customer in these instances.
(2a) For contracts with an explicit number of search agents a search agent is explicitly unreasonable for UMT if the average number of used keywords or search phrases over all searches belonging to the contractual relationship exceeds twice the amount of the average of used keywords or search phrases per search agent throughout the UMT-system. Keywords and search phrases that are only used as exclusions are not considered. The determining value is set to be the current value or the value at the time the contract was signed, whichever is better for the Customer.
(2b) For contracts without an explicit number of search agents a search agent is explicitly unreasonable for UMT if the relation of used keywords or search phrases over all searches belonging to the contractual relationship to the amount of commissioned mentions exceeds twice the relation of the average of used keywords or search phrases to the overall mentions throughout the UMT-system. Keywords and search phrases that are only used as exclusions are not considered. The determining value is set to be the current value or the value at the time the contract was signed, whichever is better for the Customer.
(3) In case UMT provides additional services beyond contractual obligations, this does not legally bind UMT to deliver these in the future.
(4) If an overload in the UMT system occurs due to any grossly negligent or intentional acts by the Customer in setting up the search agent, UMT is entitled to damages.
(5) UMT is entitled to increase the normal or listed prices for the contractual services to a reasonable extent to cover any increases in staff costs or other costs. UMT shall notify the Customer of such price increases in written form; however, price increases shall not apply to those periods of time for which the Customer has made payments. If the price increase is for more than 15% of the previous price, the Customer is entitled to terminate the contract as a whole at the end of a calendar month by giving one month’s notice; if the Customer exercises such right to terminate the contract, the non-increased prices shall be charged until the termination becomes effective. Within a period of three months after the conclusion of the contract, any price increases shall be excluded.
Art. 10 Duration of the Contract
(1) Upon expiry of the agreed duration of the contract, the contract shall be automatically extended for another 12 months unless terminated by giving notice no later than six weeks before the end of the agreed fixed period. If no duration has been defined in the contract, a minimum contract duration of 12 months normally applies, calculated from the time of signature by the Customer.
(2) If the Customer books an upgrade during a contract term, the contract shall be automatically extended by the minimum contract term of the upgrade booked.
(3) The right to effect a termination for cause shall remain unaffected.
(4) Any termination shall be made in writing.
Art. 11 Terms, Payment, Delayed Performance
(1) Any prices published verbally and/or in writing are not binding. Errors are excepted and the prices are subject to change at short notice. All prices shall be net plus statutory value added tax.
(2) The invoice shall be issued in advance for the full duration of the contract.
(3) During any default on payment by the Customer, UMT is entitled to block the Customer’s login data. If the Customer defaults on payment for two consecutive months, UMT is entitled to terminate the contract without notice. UMT reserves the right to assert further claims for default on payment
Art. 12 Modifications to the Terms of the Contract
(1) While retaining the scope of use which is the subject of the contract, UMT is entitled at any time to modify and adjust the specific wording of the terms of the contract. This shall be exclusively and solely effected to guarantee a smooth procedure as well as the optimum utilisation of the UMT offer or if any change in legislation, supreme court decisions or the market situation or any technological changes or advancements or other equivalent reasons require such a modification or adjustment and if such modification or adjustment is not unreasonably detrimental to the Customer.
If UMT intends to effect any change in the General Standard Terms and Conditions, the prices or the information provided on the Help page, for example, by raising the minimum requirements or restricting existing functions, the Customer shall be notified of such changes no less than four weeks before they become effective in writing to the administration login email addresses provided by the Customer to Ubermetrics. If the Customer does not object in written form within a period of four weeks after receiving such notice of change, such changes shall be incorporated in the contract when they become effective. UMT shall expressly inform the Customer of this consequence in the notice of change.
(2) Should any terms of contracts with external service providers for add-on modules, in particular, the TV, radio or print modules, change, UMT is entitled to discontinue the provision of the modules concerned as of the time of such change. UMT shall inform the Customer thereof.
Art. 13 Liability for Defects and Warranty
(1) If the performance rendered by UMT is defective because its suitability for use in accordance with the contract is materially impaired, UMT shall be liable for any defects in title or quality pursuant to the statutory regulations. For any defects in the software existing upon delivery of the software to the Customer, UMT shall only be liable if UMT is responsible for such defects.
(2) However, in any event UMT shall only be under an obligation to execute search orders conscientiously, but not to achieve any specific success. UMT does not assume any warranty for the correctness and completeness of results if due to any technical defects which were unknown to UMT upon conclusion of the contract or of which the Customer was informed prior to the conclusion of the contract.
(3) The Customer shall notify UMT of any defects without delay. Any warranty claims shall become statute-barred after one year.
Art. 14 Standard of Liability and Limitation Liability
(1) UMT shall be liable for intent and gross negligence subject to the statutory regulations.
(2) UMT shall be liable without restriction for slight negligence in the event of damage resulting from injury to life, limb or health. Otherwise UMT shall only be liable for any breach of a material obligation under the contract (cardinal obligation). In such cases UMT shall only be liable for the foreseeable damage which is typically expected to occur.
(3) In the event of slight negligence, liability shall be limited to the amount of the fee agreed upon conclusion of the contract which has become due during the agreed term of the contract until the time of the damage.
(4) Liability subject to the regulations of the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
(5) It is hereby clarified that UMT does not check the searched and linked articles for computer viruses; any liability in this respect shall be excluded.
Art. 15 Force Majeure
(1) UMT shall be released from the obligation to render performance under this contract if and to the extent that the non-performance of services is due to the occurrence of any circumstances of force majeure after the conclusion of the contract.
(2) Either Party to the contract shall notify the other Party to the contract of the occurrence of a case of force majeure in written form without delay.
Art. 16 Final Provisions
(1) The laws of the Federal Republic of Germany shall apply. The provisions of the UN Sales Convention and any legal rules referring to a different legal regime shall be inapplicable. If copies of these General Standard Terms and Conditions have been prepared in any other language than German, the German version shall be binding exclusively on UMT and the Customer.
(2) Any modifications and amendments to and any notice of termination of contractual agreements shall be made in writing; the same shall apply to the revocation of the written form requirement unless these Terms and Conditions provide written form.
(3) Berlin shall be the place of performance. Berlin shall be the place of jurisdiction for any disputes arising from or in connection with the contractual relationship existing between UMT and the Customer.
(4) Should any provision or provisions be or become ineffective in whole or in part, the effectiveness of the remaining provisions shall remain unaffected thereby. In this event, the Parties undertake to replace such an ineffective provision with such an effective provision which comes closest to the economic purpose of the ineffective provision. The same shall apply to any loopholes in the agreements.