General Terms and Conditions of Business of WeBench
Section 1 Subject matter of the contract – Summary of the contract
(1) The object of the contract is the provision of data from the database of WeBench, the procurement and provision of data collected individually for the customer, the right to terminate the rights of use of data from WeBench as well as the analysis and processing of the customer's own data by WeBench (hereinafter: WB).
(2) In any case, a contract is only binding once the customer receives the order confirmation from WB, but at the latest with the provision of the service and registration of the customer on the WeBench platform.
(3) These General Terms and Conditions (hereinafter: GTC) also apply to all future transactions with WB. Conflicting general terms and conditions of the customer do not become part of the contract. The content and scope of the reciprocal contractual obligations are subject to the following order:
Individual agreement with the customerContents of the contract of service Product-related special conditions the present Terms and Conditions
Section 2 Amendments to the General Terms and Conditions
In the event that the GTC are amended, the customer will be notified in writing two months before the proposed change. If the customer is a merchant according to HGB, the changes to the GTC shall take effect if the customer does not object in writing no later than two weeks before the effective date of the amended GTC. If the customer who is a merchant according to the German Commercial Code (HGB) remains silent, this shall be deemed as the merchants consent to the changed GTC in accordance with Section 362 of the German Commercial Code (HGB). If the customer is a consumer in accordance with Section 13 of the German Civil Code (BGB), the amendment and the entry into force of the GTC will only take place if the consumer has expressly given written consent.
Section 3 Premature termination of contract
In the event that the customer terminates the contract prematurely for reasons not attributable to WB, a lump sum of 20% of the gross remuneration of the remaining agreed contract term shall be due as a lump sum for damages and the expenses incurred by WB due to the early termination of the contract.
Section 4 Data protection clause
(1) WB uses personal data from the contract only for the purpose of contract processing, customer support, market and opinion research as well as for its own promotions. The data protection declaration in accordance with the EU GDPR of 25.05.2018 applies, in particular with the customer's rights to deletion, revocation, etc.
(2) Data of the customer incurred in the context of the contractual relationship and data of the customer for the execution of necessary persons shall be stored in this respect.
(3) To the extent necessary for the execution of the contract, the data shall also be transmitted to third-party entities which are reasonably responsible for the execution of the contract (subcontractor) or parts thereof.
Section 5 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany, in particular the BGB and the HGB as well as the ZPO, exclusively apply to disputes.
(2) The place of jurisdiction for disputes arising from the contractual relationship is the registered office of WB, i.e. in the case of civil disputes, the Local Court of Hanover or the District Court of Hanover. This only applies if the customer is also a merchant or a legal entity under public law or a special fund under public law.
(3) Insofar as the AG is a contractor in accordance with Section 14 of the German Civil Code (BGB) or a consumer in accordance with Section 13 of the German Civil Code (BGB), the legal place of jurisdiction shall apply under Section 13 of the German Civil Code (BPO) or the place of jurisdiction of the place of performance in accordance with Section 29 of the German Civil Code (BGB).
B: Quality of services and rights of use
Section 6 Content and scope of the services offered
(1) WB's services can include:
the provision of data from the WB-database the procurement and provision of personal data collected for the customer the mediation of rights of use of data held in WB the analysis and processing of the customer's own data
where applicable, including their enrichment with data from the WB database or with data obtained individually for the customer as well as related services, in particular the granting of rights of use and consulting services.
(2) Due to the dependence on external data sources and the naturally constantly changing data, the content offered may not always be entirely up-to-date or complete, despite careful selection and ongoing maintenance.
(3) Unless expressly stated otherwise in the service contract with the customer, WB does not owe the production of a concrete information with a predetermined scope and content from the customer, but the transmission of the request result, as is available on the WeBench platform at the time of delivery to the customer.
Section 7 Characteristics and significance of the services
Information in documentation, test and promotional materials is not to be construed as warranties or representation of special characteristics. Whether data purchased from WB meets the requirements for the intended use of the customer or are suitable for the intended purpose of use by the customer is the sole responsibility of the customer. The same applies to the legal admissibility of the further processing of the data, in particular compliance with the statutory provisions on data protection and competition law. The customer remains responsible for the final evaluation. A transfer to WB of statutory compliance checks (e.g. in connection with the Money Laundering Act) is not part of the contract and is always excluded. The customer is aware that the cost-effectiveness information are momentary snapshots only and that the risk of the business relationship remains with the customer in any case. WB recommends that business decisions should not be made dependent solely on WB's data, but that customers should carry out their own plausibility checks and, if necessary, use further data.
Section 8 General Terms and Conditions of Use
(1) Unless stated otherwise in any product-specific terms or contractual agreements, WB grants the customer rights of use to the following extent, that the customer receives a simple, non-exclusive right of use of the data provided by WB for the purpose specified in the contract.
(2) The exercise of the rights of use is only permitted for the customer's own needs. The customer and the employees belonging to his immediate legal organisation as well as vicarious agents are entitled to use it, provided that they only act as instruction-bound agents of the customer (e.g. processors within the meaning of Article 4 No. 8, 28 GDPR).
(3) In the case of continuing obligation the right of use exists for the duration of the contract, in all other cases it entitles the customer to use the data once in the direct temporal connection with their receipt. In the case of updates, it refers to the most recently deployed version. After the right of use expires, the customer must refrain from using the data received from WB and delete the data immediately. WB may require the customer to provide an affidavit stating that the data has been deleted entirely and completely and is not stored on any for of data storage.
Section 9 Copyright, Trademark and Trademark Protection
(1) The databases available via WB are a database work produced by WB within the meaning of Sections 4 paragraph 2, 87a paragraph 1 UrhG. The software provided for the retrieval of the information is subject to the protection in accordance with Section 69a ff. UrhG. The customer is prohibited from accessing the software in order to modify, copy or falsify it or to influence or derive any other form of influence on the program text (source code) of the software.
(2) All intellectual property rights (copyrights, data usage rights, rights to databases) in services provided by WeBench remain with WB, even if the results of the work were created to the customer's specifications or by cooperation, unless the contract concluded between the customer and WB expressly states otherwise.
(3) Trademarks, company logos, copyright notices and all other identifying features of WB and its cooperation partners may not be removed or changed.
(1) Personal data within the meaning of Article 4(1) GDPR may only be transmitted if there is a legal authorisation to do so (for example, because the data subject has given his/her consent or because the data is required for the performance of the contract or due to a legitimate interest).
(2) Insofar as the transmission of personal data within the meaning of Article 4(1) GDPR is the subject of the provision of services, WeBench fulfils its obligation to notify the data subject under Article 19 GDPR of subsequent changes or processing restrictions on personal data by offering the customer updates of the data received. If the customer makes no use of this or does not have an update option available in the product purchased from him/her, the exercise of the rights of use is limited to the direct temporal connection with the transfer of the personal data by WeBench to the customer and ends no later than one month after the transmission.
Section 11 Access to online services, availability
(1) WB provides certain services for use via the Internet (online services), in particular in order to enable the customer to access WeBench by automatic retrieval procedure. The creation of the necessary technical prerequisites is the responsibility of the customer. This applies in particular to the provision of suitable interfaces if the customer wants to connect the WB-databases to his own IT system environment (so-called "integration solutions").
(2) The WeBench services are designed for 24/7 access. WB strives for an availability time of 90 percent on average per year. This commitment does not cover periods of temporary inaccessibility due to routine or required maintenance, backup, or upgrade actions. In addition, it does not cover downtime which is due to the lack of technical conditions for access to the online services to be created by the customer, which are due to errors in the general telecommunications infrastructure or are the responsibility of the data transmission company or which are due to force majeure outside the control of WeBench. The customer is only entitled to a right of reduction with regard to the agreed remuneration in the event of a failure of the online services over a significant period of time outside the average availability time.
(3) The customer reaches the online services via a registration form, for which personal access data is made available to the customer or his/her authorized users. The customer is responsible for the confidentiality of the access data and must prevent their misuse. He/she is aware that any person who knows his or her user's access data can access WB services at the expense of his/her customer account and is liable to WeBench for the conduct of all its users as well as for his/her own conduct.
(4) WB reserves the right to refuse access to online services if there are indications that the functionality or security of the Services used by the Customer is impaired or that WB's ability to verify the customer's access authorisation and the admissibility of the use (for example, when accessing the WB-systems from IP addresses listed on generally accessible blacklists or when the Customer uses software that allows the user to be widely anonymised). WB will inform the customer of an intended suspension within due time for remedial action, unless the functional or security impairment is so serious that an immediate blocking of access is justified.
(5) WB may adapt its online services and services to current requirements, in particular the state of the art, to optimize system performance and user-friendliness, as well as changes to content, provided that the latter are necessary for the correction of errors, for updating and completion, for program-technical optimization or for licensing reasons. If such a change leads to not only a insignificant devaluation of the services to the customer, the customer may, within a period of eight weeks from the occurrence of the change at his discretion, either demand a reduction in the remuneration corresponding to the devaluation or terminate the performance contract in an extraordinary manner.
Section 12 Confidentiality
Without prejudice to the data protection obligations, the contracting parties must treat any information that is sent to them or become known to them by or about the contractual partners in connection with the agreements concluded between them confidentially. This applies in particular to all information which is marked as confidential or which by its very nature is recognizable as a trade secret. Reverse engineering is inadmissible and does not constitute a legitimate knowledge. The obligation of confidentiality shall not apply to information that is obvious without this being the result of a breach of contract by the contractual partner or received by a third party authorised to disclose. Anyone who invokes this exception bears the burden of proof.
C: Settlement and payment terms
Section 13 Prices
Unless stated otherwise, price information is net prices in Euros (€; EUR) and are exclusive of the statutory value added tax (VAT; Mehrwertsteuer, MwSt.).
Section 14 Price changes
(1) Within the framework of an ongoing long-term debt relationship, WB reserves the right to adjust the prices agreed with the customer in the event of changes occurring after the conclusion of the contract (e.g. in the case of extensions of the scope of services of the purchased product, cost increases for the provision or due to changes in legal regulations). Price changes shall take effect at the earliest on the beginning of the following month after receipt of a change notice submitted in written form to the customer.
(2) If price changes for a service amount to more than five percent within a calendar year, the customer is entitled to terminate the contract for that service on the date of the planned entry into force of the price increase. The cancellation must be declared no later than four weeks after notification of the price increase. If the customer makes no use of this right and if the customer has been informed of this legal consequence in the notice of price increase, the contract will be continued at the changed prices, provided that the customer is a merchant within the meaning of the German Commercial Code (Section 362 Of the German Commercial Code: Silence as consent).
Section 15 Settlement for quantity-based orders with prior potential analysis
If the customer wants to obtain data records on the basis of certain selection criteria and informs WB before contract closing the delivery quantity likely to result on the basis of the selection criteria ("potential analysis"), the above-mentioned data sets are only non-binding indicative values. The only decisive factor for the performance of the contract is the number of data sets actually selected and delivered by WB for the respective order. This may increase or decrease after the conclusion of the contract until the time of delivery due to the constant receipts and departures on the WB database as well as for reasons of quality control. If a minimum order value has been agreed for the order, it is the price floor regardless of the actual number of records delivered.
Section 16 Due date, audit of settlement
All payments are due immediately and without deduction after receipt of the invoice from the customer. Complaints against the amount of the settlement must be received by WB within eight weeks of receipt of the invoice, otherwise the settlement shall be deemed to have been approved.
Section 17 Rights of set-off or retention
A set-off of the customer can only be asserted insofar as the counterclaims are undisputed or legally established. The same applies to the right of retention in accordance with Section 273 of the German Civil Code (BGB).
Section 18 Retention of title
The transfer of agreed rights of use as well as the transfer of ownership of the delivered products is subject to the full fulfilment of all due claims arising from the entire business relationship with the customer, regardless of the legal basis on which the claims are based.
Section 19 Infringements
If the customer violates the obligations under his obligation in spite of a written warning from WB, WB is entitled to discontinue the further provision of services and, in particular, to block database access. This does not affect the customer's obligation to pay the agreed remuneration. WB has no obligation to give the customer a prior warning if the conditions for an extraordinary termination for the cessation of the provision of services agreement.
Section 20 Claims for defects
(1) WB guarantees that the services purchased are free of defect and that no rights of third parties preclude the transfer of agreed usage powers to the customer.
(2) If there is a defect, the customer is entitled to the statutory claims for defects. In the case of a commercial transaction, Section 377 of the German Commercial Code (Excise notice and investigation obligation) applies in addition. A corresponding complaint requires the written form.
(3) Claims against WB due to functional impairments or performance disruptions, which are based on the breach of the customer's obligations to cooperate or on other circumstances for which the customer is responsible (e.g. non-professional installation or maintenance, non-use, incorrect operation or defects in the IT system used by the customer) are excluded.
(4) The limitation period for claims for defects is governed by the statutory provisions.
Section 21 Exemption from liability
The customer shall make WB free from all claims of third parties based on the unlawful use of the information obtained by him/her.
D: Special Terms and Conditions – Service Contract
Section 22 Subject of the service contract – provision of services
(1) The contract covers the services of WB agreed as stated in the contractual document.
(2) WB owes a careful provision of services, which corresponds to the current state of the art in the field of commissioning at the time of the service, unless agreed otherwise. The service must be provided in German unless agreed otherwise. WB is obliged to be neutral in the provision of services.
(3) WB is only entitled to provide the agreed services by means of automated procedures if it names in the offer the product to be used and at the same time guarantees, in accordance with the facts, that this product has no communication functions to third parties and no other functionality contrary to the interests of the customer. In particular, the product may not contain any functions for the spying of data, do not store information about the customer's IT systems, their data, their licensing or user behaviour via third parties, for purposes other than for the provision of the service or in such a way that third parties could access it.
Section 23 Rights to the performance results
Unless otherwise agreed in the contract, WB shall provide the customer with the benefit of the non-exclusivelocally unlimited in any environment (including system environment) exercisable, transferable permanent, irrevocable and non-cancellable sublicensable for non-commercial purposes for commercial purposes, as defined in Section 99,101 GWB, on WB sublicensable
right to use the performance results in the original or in modified, translated, edited or redesigned form.
This means, in particular, to store or load permanently or temporarily, to display them or to have them expire, insofar as reproductions become necessary for this purpose or to modify, translate, edit or otherwise redesign.
Section 24 Documentation and reporting obligations
(1) WB shall document the services performed in an appropriate manner, unless agreed otherwise, in German in a standard electronic format and make them available to the customer upon completion of the service. WB is obliged to provide an insight into the current status of the documentation at all times.
(2) Upon request, WB shall report to the Customer on the status of the services during the term of the contract.
Section 25 Notification obligations of WB
(1) WB shall inform the customer without delay if a requirement or claim of the customer or any action resulting from the contractual obligations of WB is substantially incorrect, incomplete, contradictory or not as agreed or if there is a more economical solution for the customer. If possible with reasonable effort, he/she must inform the customer at the same time of the consequences that are recognizable to him/her. He/she shall not be liable for the failure to fulfill those obligations if he/she should not have identified those circumstances in the event of his/her performance of his services.
WB is not obliged to carry out investigations and tests which are not necessary for the provision of the service. In addition, WB's obligations under Section 241
(2) of the German Civil Code (BGB) remain unaffected.
(2) As soon as it becomes apparent to WB that it is unable to meet the agreed deadlines or execution obligations, it will inform the customer immediately.
(3) The agreed participation services of the customer must be requested by WB in good time.
Section 26 Compensation for benefits under the service contract
(1) The flat-rate fixed price shall be the total remuneration due for the service, which cannot be changed on a one-sided basis. Material costs, travel times, travel expenses and incidental costs are included in the flat rate. Claims by the contractor is also excluded, insofar as the parties do not agree to changes to the services.
(2) If remuneration is agreed upon after expenses, the following shall apply: Only the time required is remunerated. Travel times, travel expenses, material costs and/or ancillary costs will be reimbursed in accordance with the contractual agreement. Waiting times of WB for which the customer is responsible are remunerated as working hours. WB must, however, be credited for what it saves by non-performance of its services or by otherwise using its services to acquire or unwilling to acquire it. The payment of a remuneration by expenditure presupposes proof of performance and other claimed costs, which have been signed by WB.
(3) The remuneration at the flat-rate fixed price is due after the performance of the service. In the contract, advance payments can be agreed. The remuneration for performance after expenses is due monthly retrospectively, unless agreed otherwise.
(4) If a price adjustment for the service is agreed, the following applies, unless provided otherwise: An increase in remuneration may be announced for the first time 12 months after the start of the contract, further increases at the earliest 12 months after the previous increase takes effect. An increase will take effect 3 months after the announcement. The increase shall be appropriate and not contrary to the market trend relevant to the performance and may not exceed 3% of the remuneration applicable at the time the increase was announced.
(5) All prices are understood exclusive of VAT plus, as far as VAT is compulsory, the applicable VAT.
Section 27 Poor performance
If a service is not performed in accordance with the contract, the customer is entitled to demand that WB provides the service in accordance with the contract without additional costs to the customer within a reasonable period of time. This does not apply if the customer is not responsible for the breach of duty. However, the customer must submit proof of poor performance in detail to WB before he commissions WB to provide the service again.
Section 28 Limitation of Liability
(1) Unless there is another contractual liability agreement, the following rules apply to all statutory and contractual claims for damages and reimbursement of expenses by the customer.
in the case of slightly negligent breaches of duty, liability for the contract as a whole is generally limited to the value of the contract. in the event of loss of data, WB shall only be liable for the effort that would have been necessary for the restoration of the data if the customer had properly and regularly backed up the data. The restriction does not apply if and to the extent that the data protection is part of the services to be provided by the customer.
(2) Claims arising from lost profits are excluded unless agreed otherwise.
(3) The limitations of liability do not apply to claims for intent and gross negligence on life, body or health in the event of malice, as far as the Product Liability Act applies, as well as to warrant promises unless otherwise stipulated with regard to the latter.
Section 29 Term and Termination
(1) If the duration of the service contract is neither agreed, nor inferred from the nature or purpose of the service, it may be terminated in whole or in part by either party with a notice period of three months at the end of a calendar month, but at the earliest at the end of the minimum contract period agreed in the contract. A different period of notice may be agreed in the contract.
(2) In addition, the contract may be terminated in whole or in part by any contractual partner in the event of an important reason (without observance of a notice period) within a reasonable period of time from the knowledge of the reason for termination. An important reason exists if there are facts on the basis of which the terminating party can no longer be expected to continue the contract, taking into account all the circumstances of the individual case and dealing with the interests of the contracting parties. If an important reason consists in the violation of a contractual obligation, the termination is only admissible after the unsuccessful expiry of a time limit set for redress or after an unsuccessful warning, unless a time limit is not necessary in accordance with BGB Section 314 in conjunction with BGB Section 323(2). In the event of termination for good cause, the contractor shall be entitled to compensation for the services rendered on the basis of the contract until the termination takes effect. However, the remuneration shall not apply to such services for which the AG states that they are of no interest to him/her as a result of the termination.
Section 30 Final Provisions
(1) No verbal ancillary agreements were made. All amendments and additions to this contract as well as an amendment to the written form requirements must be made in writing.
(2) Should individual provisions of this contract be or become ineffective or unenforceable, the remaining provisions shall remain unaffected. This also applies to the fundamental provision of this treaty. Instead of the invalid provision, the parties will make a provision that comes closest to the legally desired result and the economically desired success.
(3) The contract is subject to the law of the Federal Republic of Germany. German law is applicable.
As of March 2021