1. Scope of Application
1.1 iLocator GmbH, Alstertor 9, 20095 Hamburg (hereinafter referred to as “Service Provider”) offers infrastructure management to municipalities and companies in the form of software and hardware products. The range of Services is aimed exclusively at entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law.
1.2 Service Provider provides all deliveries and services (“Services”) exclusively on the basis of these general terms and conditions (hereinafter referred to as “Terms”, “ToS”). They also apply to all future business relationships, even if they are not expressly agreed again. The customer (hereinafter referred to as “Customer”) accepts these ToS by placing an order.
1.3 Deviations from or additions to these ToS must be made in writing. Verbal ancillary agreements made upon conclusion of the contract are only effective if they have been confirmed in writing by the Service Provider. This also applies to contract changes after conclusion of the contract. The written form requirement shall also be deemed to have been complied with by electronic form (e-mail).
1.4 Customer’s general terms and conditions deviating from these ToS shall only be effective if they have been confirmed in writing by the Service Provider. Customer’s general terms and conditions are not accepted, and the Service Provider hereby objects to them.
2. Conclusion of Contract
2.1 Offers from the Service Provider are subject to confirmation and non-binding. A contract is only concluded after confirmation of the Customer’s order by Service Provider or with the first performance by Service Provider.
2.2 Price and as well as other declarations or assurances are only binding for the Service Provider if they have been submitted or confirmed in writing.
2.3 Offers may be revoked by the Service Provider at any time until accepted by the Customer, unless expressly agreed otherwise in writing.
2.4 Changes or additions to the offer or these ToS by the Customer shall be deemed to be a new offer by the Customer.
2.5 Customer will accept partial deliveries without Customer’s prior consent.
3. Scope of Services
3.1 The scope of the agreed Services results from the written offer of the Service Provider. Subsequent changes must be made in writing.
3.2 If and to the extent that Customer does not make any specifications for the provision of Services (e.g. with regard to concept, design and/or technology), the Service Provider is free to implement the provision of Services as he seems fit.
3.3 All work shall be carried out to the best of the Service Provider’s knowledge and belief, taking into account a balanced relationship between cost-effectiveness and the best possible success in the sense of the Customer.
3.4 If Customer requests change beyond the offer, during or after the provision of the Service, he shall bear the additional costs. If the execution of the order is delayed for reasons for which Customer is responsible, the Service Provider may demand an appropriate increase in remuneration.
3.5 The provision of Services by the Service Provider does not include legal advice by the Service Provider, nor does the Service Provider check the legal admissibility and correctness of the Services, in particular with regard to road construction and traffic law.
3.6 Service Provider is entitled to provide the Services in whole or in part also through third parties associated with Service Provider.
4.1 Facilities and Data Transfer.
Service Provider has implemented industry standard systems and procedures to ensure the security and confidentiality of Customer data, to protect Customer data against anticipated threats to the security or integrity and protect Customer data against unauthorized access. As part of providing the Services, the Service Provider may transfer, store and process Customer data in any country in which the Service Provider or its agents or data hosting contractors maintain facilities. By using the Services, the Customer consents to this transfer, processing and storage of Customer data.
4.2 Modifications to the Services.
The Service Provider may, from time to time, make technically or commercially reasonable changes to the Services. If the Service Provider makes a material change to the Services, the Service Provider will inform the Customer.
5. Customer Obligations
5.1 Customer Administration of the Services.
Customer may specify one or more Administrators through the Admin Center who will have the rights to access admin account(s) (“Admin Account”) and to administer the Customer accounts (“Customer Account”). Customer is responsible for: (i) maintaining the confidentiality of the password and Admin Account(s); (ii) designating those individuals who are authorized to access the Admin Account(s); and (iii) ensuring that all activities that occur in connection with the Admin Account(s) comply with the ToS. Customer agrees that Service Provider’s responsibilities do not extend to the internal management or administration of the Services for the Customer and that the Service Provider is merely a data-processor.
5.2 Customer Consent
The Customer’s Administrators may have the ability to access, monitor, use, or disclose data available to Customer within the Customer Accounts. The Customer will obtain and maintain all required consents to allow: (i) Customer’s access, monitoring, use and disclosure of this data and Service Provider providing Customer with the ability to do so and (ii) Service Provider to provide the Services.
5.4 Unauthorized Use
The Customer will use commercially reasonable efforts to prevent unauthorized use of the Services, and to terminate any unauthorized use. The Customer will promptly notify the Service Provider of any unauthorized use of, or access to, the Services of which it becomes aware.
5.5 Restrictions on Use
Unless the Service Provider specifically agrees in writing, the Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease or the functional equivalent, the Services to a third party (unless expressly authorized in these ToS); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for high risk activities; or (e) use the Services to store or transfer any Customer Data that is controlled for export under export Control Laws.
6. Billing and Payment
The Customer will not be committed to purchase the Services for a pre-defined term but will pay for the Services on a yearly basis. Payments are to be made in advance for the following year. The Service Provider will issue an invoice to the Customer.
For the purchase of goods (in particular hardware) a payment period of 10 days after receipt of an invoice applies. The Service provider will remain owner of the goods until the complete payment of the goods.
All prices are net prices in Euro plus the applicable statutory value added tax. Costs for packaging, postage and freight will be charged separately. The invoice amount is due for payment without deduction immediately upon receipt of the invoice. Service Provider is entitled to invoice reasonable advance payments for Services expected to be rendered or reasonable advance payments for Services already rendered. If requested advance payments, partial payments or other invoices are not or not completely settled, the Service Provider is entitled to discontinue further activities until the outstanding claim has been settled in full. In addition, Service Provider may terminate the concluded contract without notice after prior written reminder with threat of termination. In this case the Service Provider may invoice the customer either for the services actually rendered up to the time of termination or instead for the agreed or forecast total remuneration less expenses saved by the premature termination of the contract. All payments due are in Euro.
Service Provider reserves the right of ownership and any rights to the Services rendered which may be transferred or granted until the agreed remuneration has been paid in full.
Service Provider is entitled to invoice the Customer partial deliveries from all contracts on a pro rata monthly basis.
If the Customer stops its payments, or if there is over-indebtedness or if the opening of insolvency proceedings is applied for or if the Customer is in default with the payment, the total claim of Service Provider becomes due immediately. The same shall apply in the event of any other significant deterioration in the Customer’s financial circumstances. In such cases, the Service Provider is entitled to demand sufficient security or to terminate the contract.
The Customer shall not be entitled to use any Software provided by Service Provider that goes beyond the rights of use granted in this Agreement without prior written consent of Service Provider. In the event of use without consent (in particular by a larger number of users at the same time than agreed), Service Provider shall be entitled to charge the amount incurred for the further use in accordance with the price list of Service Provider valid at that time, unless the Customer can prove that the loss suffered by the Seller is lower. Further non-contractual claims for damages remain unaffected.
6.3 Delinquent Payments
If Customer is in default with a payment, the Service Provider is entitled to suspend its Services until full payment has been received.
Delinquent payments may bear interest at the rate of one-and-one-half percent per year (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Service Provider in collecting such delinquent amounts, except where such delinquent amounts are due to Service Provider’s billing inaccuracies. For each reminder from Service Provider, a flat-rate reminder fee of € 40.00 is due.
The Customer is responsible for any taxes, and the Customer will pay the Service Provider for the Services without any reduction for Taxes. If the Service Provider is obliged to collect or pay taxes, the taxes will be invoiced to the Customer, unless the Customer provides thee Service Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. If the Customer is required by law to withhold any taxes from its payments to the Service Provider, the Customer must provide the Service Provider with an official tax receipt or other appropriate documentation to support such payments.
7. Confidential Information
Each party will (a) protect the other party’s confidential information with the same standard of care it uses to protect its own confidential information; and (b) not disclose the confidential information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any affiliates, employees and agents to whom it has disclosed confidential Information) may use confidential information only to exercise rights and fulfill its obligations under these ToS, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees and agents in violation of this Section.
Confidential Information does not include information that: (a) the recipient of the confidential information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
7.3 Required Disclosure
Each party may disclose the other party’s confidential information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
7.4 Data Export
If the Customer transfers data to the Service Provider, the Customer shall first make backup copies thereof. The Customer assumes sole responsibility – also for claims by third parties – for data provided by the Customer to the Service Provider. The Service Provider assumes no liability in the event of data loss. In this respectshall be at the expense of Customer.
The Service Provider guarantees the data protection security of the personal data provided by the Customer and observes the statutory provisions on data protection in Germany, in particular the General Data Protection Regulation (GDPR).
8. Intellectual Property Rights
8.1 The iLocator Software (“Software”) is provided as software as a service. The Service Provider grants the Customer a non-exclusive right to use the Software for single and multiple user use, but only for the geographical area agreed between the parties in which the Software is to be used. Without express agreement, the right of use is granted solely for the area of the municipality in which Customer has its registered office and only for the Term of the contract.
8.2 The Customer may use the Services provided only for the purpose of processing its internal business transactions and those of companies affiliated with it within the meaning of § 15 AktG (“Group Companies”). In particular (i) a computer center operation for third parties or (ii) the temporary provision of the Software (e.g. as application service providing) for other than Group Companies or (iii) the use of the Services for the training of persons who are not employees of the Customer or its group companies is only permitted with the prior written consent of the Service Provider. Commercial subletting is generally prohibited.
8.3 If the Service Provider provides the Customer with supplements (e.g. patches, supplements to the user manual) or a new version of the Software(e.g. update, upgrade) which replaces previously provided Software (“Old Software”) within the scope of subsequent improvement or maintenance, these shall be subject to the provisions of this Agreement.
If the Service Provider makes available a new version of the Software within the provision of the Services, Customer’s license under this Agreement with respect to the Old Software shall expire as soon as Customer makes productive use of the new Software. However, the Service Provider grants the Customer a three-month transition period during which both versions may be used.
8.4 Reproduction or revision of the application documentation is not permitted.
9. Credits and References
Either party may make any public statement regarding their relationship.
10. Representations and Warranties, Disclaimer
10.1 Each party represents that it has full power and authority to enter into the ToS. Each party warrants that it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable.
10.2 Notices of defects and other complaints based on obvious defects must be made immediately, at the latest within 10 days of receipt of the Service. The notification of non-obvious defects must be made within a period of 10 days after the detection of the defect. In the event of violation of the obligation to give notice of defects, the performance shall be deemed to have been approved with regard to the defect in question.
10.3 The Customer’s warranty claims are limited to the right to repair or replacement, at the discretion of the Service Provider. The Service Provider shall be granted a reasonable period of time for this purpose. The warranty right lapses if the Customer carried out or has had carried out a correction of defects, changes to script or programming code or other changes to the delivered or processed material without the prior written consent of Service Provider.
11.1 These ToS will remain in effect for an indefinite period of time until termination.
The Service Provider will provide the Services to the Customer during the Term. Performance/delivery periods and dates (delivery time) are only binding if they have been agreed in writing.
Compliance with the delivery time requires that the order has been completely clarified, all approvals have been granted and payments, securities and other obligations to cooperate (e.g. procurement or provision of data and/or documents, provision of information, release of drafts or concepts) to be provided by the Customer have been received on time by the Service Provider. The delivery period shall be extended appropriately if the above prerequisites are not all fulfilled in good time.
If the Customer requests changes to the order after the order has been placed which affect the production time, the delivery time shall change accordingly.
Delays in delivery for reasons for which the Service Provider is not responsible (e.g. force majeure, natural catastrophes, fault of third parties or occurrence of other unforeseeable events beyond their control), extend the delivery time appropriately.
Should the Service Provider be in default with its performance, the Customer shall only be entitled to exercise its statutory rights after setting a reasonable grace period of at least 10 days.
Service Provider is entitled to make partial deliveries.
11.2 The Customer purchase the Services for a yearly term and pay for the Services on a yearly basis in advance. As a result, there is a yearly renewal event, 30 days prior to the end of the previous period.
11.3 The Service Provider may revise its rates by providing Customer written notice (which may be made by email) at least thirty days prior to the following billing period.
12.1 Termination without Breach.
The customer has the right to terminate this Agreement at any time becoming effective at the end of the current yearly contract period.
12.2 Termination for Breach.
Either party may suspend performance or terminate these ToS if: (i) the other party is in material breach of the ToS and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of these ToS more than two times notwithstanding any cure of such breaches.
12.3 Effects of Termination.
If these ToS are terminated, then: (i) the rights granted by one party to the other will cease immediately (except as set forth in this Section); (ii) Service Provider will provide Customer access to, and the ability to export, the Customer data for a commercially reasonable period of time at Service Provider’s then-current rates for the applicable Services; (iii) after a commercially reasonable period of time, Service Provider will delete Customer data; and (iv) upon request each party will promptly use commercially reasonable efforts to return or destroy all other confidential information of the other party. Purchased hardware and the firmware contained therein shall remain the property of the Customer.
13. Limitation and Liability.
The Services provided by the Service Provider are based on a calculated forecast system. The accuracy of the forecasting system is increased with each data entry process. Service Provider delivers the forecast results to the best of its knowledge and belief. Service Provider does not warrant against the occurrence of events that the system predicted not correctly.
Service Provider shall have the right to choose the type of supplementary performance that may be required.
If Service Provider is not able to remedy the defect or to renew the service without error, Customer will be informed of possible ways to avoid the defect. Insofar as they are reasonable for Customer, they shall be deemed to be subsequent performance.
If a third-party assert justified claims against Customer based on patents, copyrights or other industrial property rights based on a service provided by Service Provider, Service Provider shall represent Customer in any legal dispute brought against Customer at Customer’s expense and indemnify Customer with respect to such claims. However, this shall only apply if Customer Service Provider immediately notifies Customer Service Provider of the corresponding letter of claim of third parties and details of any legal disputes and Service Provider leaves all decisions regarding the use of the Software attacked by third parties, legal defense and a settlement agreement to Service Provider, and only if Service Provider is informed of such claims before claims for defects in title become statute-barred.
Customer shall be obliged to examine the Services provided by Service Provider upon receipt thereof and to notify Service Provider of any defects immediately, but no later than 10 days after receipt thereof. Notice of non-obvious defects must be given within a period of 10 days after detection of the defect. In the event of violation of the obligation to examine and give notice of defects, the service shall be deemed approved in view of the defect in question.
A liability of Service Provider is excluded – regardless of the legal nature of the asserted claim – insofar as it is based only on slight negligence.
Liability for the recovery of Customer’s data shall be limited in amount to the costs necessary to recover the data that would have been lost even if Customer had regularly backed up the data with due care.
The foregoing exclusions and limitations of liability shall not apply in the event of breach of any warranty or material contractual obligation. In such a case, however, the liability of Service Provider shall be limited to compensation for the foreseeable damage typical for the contract.
The limitation period for claims arising from material defects is 12 months. Claims from the product liability law remain unaffected by this regulation.
The limitation period with regard to defects of title begins at the point in time at which a third-party assert claims due to defects of title against Customer or Customer learns of the defect of title. The limitation period in this respect shall be 6 months.
Otherwise, Customer’s claims arising from a breach of duty by the Service Provider or its vicarious agents shall become statute-barred one year after the statutory commencement of the limitation period.
Objects and materials handed over to Service Provider are not insured by Service Provider. Customer may ensure adequate insurance cover. Service Provider shall only be liable for lost Customer items and materials in the event of intent or gross negligence.
The above provisions shall not apply to claims for damages due to intentional or grossly negligent conduct and to claims due to damage to life, limb or health.
14. Consultations and Training
14.1 Service Provider also provides services in the form of consultations, analyses, counseling, training, lectures, seminars and/or coaching.
14.2 Unless otherwise agreed in individual cases, these services consist of independent and consulting of the Customer. A concrete success is neither owed nor guaranteed. Customer is solely responsible for deciding on the time, type and scope of the measures recommended by Service Provider or coordinated with Service Provider. This applies even if Service Provider accompanies the implementation of coordinated plans or measures by the client.
14.3 Unless otherwise agreed, a daily fee shall be payable for each day commenced for such services. Travel times shall be remunerated. The agreed fees shall be invoiced immediately after the services have been performed. Service Provider can make the provision of services dependent on an advance payment of 50%. Travel and accommodation costs are to be reimbursed to Service Provider separately and in advance.
14.4 If a deadline for Service Provider to provide the service cannot be carried out on time due to force majeure, illness, accident or other circumstances for which Service Provider is not responsible, Service Provider shall be entitled, excluding any liability for damages, to make up for the services on a new date to be fulfilled within six months of the cancelled date.
If an appointment cannot be made by the Customer, Service Provider shall endeavor to fill the appointment elsewhere. If this is successful, only a processing fee of 20% of the fee plus the costs incurred shall be payable. If the appointment cannot be filled at another customer, 50% of the fee will be charged as an expense allowance in the event of cancellation up to two weeks before the date of performance. If this cancellation deadline is not met, the agreed fee must be paid in full. The Customer is at liberty in each case to prove that lower damage has occurred.
15.1 Assignment, Retention
The right of retention due to counterclaims and the offsetting against counterclaims is excluded, unless these are undisputed or legally established.
The assignment of rights and / or the transfer of obligations from the contractual relationship without the express consent of Service Provider is excluded. .
Service Provider may transfer rights and obligations from the contractual relationship to third parties at any time with the Customer’s consent.
15.2 Corporate Transaction
Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction) the party experiencing the change of control will provide written notice to the other party within thirty days after the change of control.
15.3 Transfer of ToS
iLocator is entitled to transfer these ToS from one Service Provider to another Service Provider. In order to exercise this right iLocator shall provide a continues an uninterrupted Service.
15.4 Force Majeure
Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
15.5 No Waiver
Failure to enforce any provision of these ToS will not constitute a waiver.
If any provision of these ToS is found unenforceable, the balance of the ToS will remain in full force and effect.
15.7 No Agency
The parties are independent contractors, and these ToS does not create an agency, partnership or joint venture.
15.8 Third-Party Beneficiaries
Apart from members of the iLocator Group, there can be no third-party beneficiaries to these ToS.
15.9 Equitable Relief
Nothing in these ToS will limit either party’s ability to seek equitable relief.
15.10 Governing Law
These ToS are governed by the local law and jurisdiction of the Service Provider.