1.1 These General Terms and Conditions apply to all contracts entered into between the customer and Dataforce GmbH (hereinafter: “Dataforce”) with respect to the use of Dataforce products. Content and scope of the services will be determined by the respective quote of Dataforce and the customer’s order based on such quote (hereinafter: “contract”). The present General Terms and Conditions will form an integral part of all contracts entered into with respect to the use of Dataforce Products.
1.2 These General Terms and Conditions of Dataforce shall apply exclusively. Terms and conditions of the customer which conflict with or deviate from these General Terms and Conditions of Dataforce will not be recognized unless Dataforce has agreed to their application. This applies even if Dataforce renders its services without reservations while being aware of terms and conditions of the customer which conflict with or deviate from these General Terms and Conditions.
1.3 These General Terms and Conditions shall apply to all future contracts with Dataforce concerning the use of Dataforce products.
2. Dataforce Products
2.1 In the case of contracts concerning Dataforce products, Dataforce will make available – either as online application or otherwise – sets of data consisting of address-related and/or international registration data, as well as evaluations and analyses.
2.2 In the case of online applications, Dataforce will enable the customer in accordance with the contractually agreed selection to access the Dataforce sets of data for the duration of the contract. Content and scope of the use of the Dataforce sets of data and the therewith related rights will be determined by the terms agreed upon in the respective contract and by the terms of these General Terms and Conditions, in particular nos. 2 and 4 of these General Terms and Conditions.
2.3 In the case of online applications, Dataforce will make available updates and new data collections carried out during the term of the contract to the extent that the same fall into the sets of data selected according to the contract.
2.4 Access to the online application will include access for such number of users per customer as is indicated in the contract. Additional users can be given access against payment of additional remuneration. Access will be possible online, via the Internet, through a Web browser (Internet Explorer 5.5 or a higher version).
3. Technical Requirements for Online Applications
3.1 To be able to access the online application, the customer will be given in writing a user name and the pertinent password for each user access. Upon proper activation, the customer can access the set of data cleared for it to the extent stipulated in the respective contract.
3.2 In the case of online applications, it will be the customer’s own responsibility to establish a connection between its computer and the Dataforce server and to bear the costs thereby incurred.
4. Rights and Limitations of Use
4.1 The customer recognizes that the Dataforce databases are database works or databases, as defined in Sections 4 (2), 87a (1) German Copyright Act (Urheberrechtsgesetz – “UrhG”), and that the pertinent computer programs are protected by Sections 69a et seq. German Copyright Act. Dataforce and/or its cooperation partners have all rights in and to the contents and elements of the databases, in particular, all rights of use, copyrights and related rights (Leistungsschutzrechte) with respect to the data contained therein.
4.2 Dataforce grants the customer a non-exclusive and non-transferable right of use which is limited to the duration of the respective contract and which permits the customer to access and use the Dataforce sets of data according to the following provisions.
4.3 The customer is not authorized to use the proposals with respect to the compiled set of data which Dataforce submits during the offer stage. This applies also to the use of such proposals in a modified form.
4.4 The customer may use the Dataforce sets of data only in its own business and only for the area of business which is described in the respective contract and – subject to the provisions set out under nos. 4.5 to 4.7 below – only for this business area’s own purposes. Any use by a third party or for the purposes of a third party, even if the third party is a group company, as defined in Sections 15 et seq. German Stock Corporation Act (Aktiengesetz – “AktG”), is prohibited. If the customer uses external service providers or authorized distributors to market its products and services in the respective area of business, it may provide the data to these parties for further processing according to the present General Terms and Conditions, provided that the respective service provider or distributor has expressly agreed in writing to the application of these General Terms and Conditions. In such case, the customer shall be obligated to inform Dataforce beforehand in writing to whom the data will be provided, and for what purpose and for what duration, and to assure in writing that the service provider or distributor has agreed to the application of these General Terms and Conditions.
4.5 The right of use entitles the customer to use the data obtained under the respective contract permanently and without limitation in time. The right of use which the customer is granted with respect to the Dataforce sets of data generally includes:
the unlimited read access to the Dataforce set of data made available according to the contract;
the right to carry out evaluations or research relating specifically to particular groups of data within the set of data made available; and
the right to export data from the set of data for the described purposes.
4.6 The customer is not authorized to make any further use of the sets of data. In particular, the customer is not authorized:
to make the data available to a third party or process the data in a manner other than described under no. 4;
to translate the data into another language for their systematic use within the framework of sales activities;
to systematically collect the data in a manner other than described under no. 4.5 or to compile the data in the form of a new database beyond the scope of no. 4.5 or to otherwise market – i.e. sell, lease, give away or lend – the data.
5. Customer’s Duties
5.1 The customer shall provide Dataforce in due time with all necessary information which is required for the compilation and provision of the sets of data pursuant to the contract.
5.2 The customer shall be obligated to comply with the applicable legal provisions and general rules concerning the use of the Internet when using the Dataforce sets of data. The customer shall refrain from all actions which go beyond the authorized, adequate use of the sets of data made available.
5.3 To the extent that registration data which have been made anonymous are made available within the framework of a Dataforce product, such data will be subject to the statutory provisions concerning the protection of statistical secrecy. The customer undertakes not to personalize the registration data made available, i.e. not to link the data to other sets of data to find out, for example, the data of the owners. The customer shall expressly point out to its staff members and agents that obtaining personal data surreptitiously for the purpose of personalizing such sets of data gives rise to criminal liability pursuant to Sec. 43 (1) no. 1 German Federal Data Protection Act (Bundesdatenschutzgesetz – “BDSG”).
5.4 The customer shall take appropriate precautions to protect the sets of data from unauthorized access by third parties. In particular, the customer shall protect all data storage media on which the sets of data are stored as well as the user name and the password from unauthorized access by third parties. If unauthorized third parties obtain knowledge of the user name and/or password or if the user name and/or password are lost or if the relevant staff member leaves the customer’s company, the customer shall so advise Dataforce without undue delay and arrange for the user name and/or password to be changed. The customer will be liable for all damage and losses for which the customer is responsible and which Dataforce sustains as a result of the use of user names and/or passwords by unauthorized parties.
5.5 The customer shall be obligated to maintain for an unlimited duration the confidentiality of any and all information of which the customer obtains knowledge and which can be identified as a trade or business secret of Dataforce, as well as of the origin of address-related data, i.e. the receipt of such data from Dataforce, and the customer may neither record nor disclose or otherwise exploit such data to the extent not necessary to achieve the purpose of the contract. The customer shall ensure through appropriate contractual arrangements with the employees and agents working for it that the latter, too, refrain for an unlimited duration from any exploitation, disclosure and unauthorized recording of the aforementioned information and monitor compliance with these General Terms and Conditions. If an employee or agent working for the customer still breaches this obligation, the customer shall so advise Dataforce without undue delay and make its best efforts to assist with the clarification of the breach.
5.6 When the sets of data are accessed, Dataforce will collect, process and use personal inventory and usage data within the scope of the specified purpose of the contract.
5.7 If Dataforce discovers facts which suggest that data are abused either willfully or in a grossly negligent manner, Dataforce reserves the right to assert claims for damages. The customer undertakes to assist in the clarification of the facts. This includes the possibility of an inspection of relevant records, whether by Dataforce itself or by an independent investigator commissioned by Dataforce. Dataforce shall especially have the right to verify compliance with the provisions concerning the use of mailing addresses through control addresses. If an abuse of data within the meaning of these General Terms and Conditions is proven, in particular by presentation of a control address, the damages payable will be ten times the invoice value unless it can be proven that the damage actually sustained is higher or lower.
6.1 For the use of the Dataforce products and the provision of the Dataforce sets of data, the customer is obligated to pay the remuneration stipulated in the respective contract. For certain Dataforce products, the annual remuneration will be determined on the basis of the number of profiles actually provided according to the contractual specifications or according to the Dataforce pricelist applicable from time to time or according to content and scope of the selection and evaluation criteria. Depending on the respective Dataforce product, the customer must additionally pay an annual set-up fee. If the remuneration based on the number of profiles made available exceeds the remuneration for the previous year by more than 10%, the parties will agree anew on the selection criteria and remuneration and adjust the content of the services at the customer’s request.
6.2 Unless otherwise provided in the contract with respect to the invoicing and the terms of payment, the remuneration does not include value-added tax, which will have to be paid additionally, and will be due immediately and without any deduction upon issuance of the invoice.
6.3 Without prejudice to any other claims, Dataforce will be entitled to charge interest at a rate of 8 percentage points above the base rate applicable from time to time if the time allowed for payment is exceeded.
6.4 Dataforce may adjust the remuneration in the case of contracts concerning the ongoing use of Dataforce products. Dataforce may, in particular, adjust the remuneration at the end of each calendar year with effect for the following calendar year on the basis of the “index of the average gross monthly remuneration of employees in industry and in the service sector”, as published by the German Federal Statistical Office (Statistisches Bundesamt) in the statistical yearbook. To determine the price adjustment factor, the most recent index (“Actual Index”) and the index for the calendar year in which the contract was formed or – if the remuneration has already been adjusted – the index for the calendar year in which the last adjustment was made (“Base Year Index”) will be taken as a basis. The price adjustment factor, expressed in percent, will be determined by comparing the Actual Index with the Base Year Index, the change – expressed in percent – being the price adjustment factor. In the event that the remuneration is raised by more than 10%, the customer will be entitled to terminate the contract early, as of the effective date of the adjustment, if the customer does not wish to continue the contract with the adjusted remuneration.
6.5 Without prejudice to its right to terminate the contract without notice for cause pursuant to no. 9.2 below, Dataforce may temporarily suspend the provision of the Dataforce products if, despite a request for payment, the customer is more than one month late with the payment of an amount of remuneration due.
6.6 The customer may make a setoff or exercise a right to withhold with respect to claims of its own only to the extent that the customer’s claims have been finally established by declaratory judgment or otherwise, are undisputed or have been recognized.
6.7 The assignment of claims against Dataforce is not permissible.
7. Defects and Disturbances
7.1 The agreed properties of the Dataforce products are set out exclusively in the contract. Statements and explanations concerning the Dataforce products are to be understood solely as a description of the properties and not as a guarantee or express warranty (Zusicherung) with respect to a feature. Statements concerning the subject matter of the services provided are only guarantees or express warranties (Zusicherungen) in the legal sense if given in writing and referred to explicitly and literally as “guarantee” or “express warranty”.
7.2 Dataforce compiles the sets of data made available to it with great care, checks them at random for their being correct, complete and up-to-date, and updates them at regular intervals in its discretion. Nevertheless, it cannot be excluded, particularly in the case of data collected by telephone, that single data are incorrect, incomplete or obsolete. For this reason, Dataforce does not warrant that the sets of data made available to Dataforce or edited by Dataforce from sources generally available are correct, complete and up-to-date. In consideration of the peculiarities of the address publishing business, Dataforce does not warrant especially in the case of address-related data that the addressee is, or still is, what he pretends to be or has been alleged to be, or that the relevant data have been collected in compliance with data protection law.
7.3 A defect as to quality exists if the products do not have the contractually agreed properties and the absence of the contractually agreed properties makes the products unsuitable for, or at least impairs their suitability for, the contractually agreed use. An immaterial restriction in their suitability will not be taken into account. The customer must notify Dataforce of occurring defects, disturbances or damage without undue delay, in the case of defects of the sets of data not later than within 3 months of the receipt of the data. If the contractually agreed use of certain sets of data is more than merely immaterially impaired due to their being incorrect, incomplete or not sufficiently up-to-date, Dataforce shall correct, supplement or, at the choice of Dataforce, replace the sets of data concerned.
7.4 Accessibility may be impaired or become temporarily impossible due to the general technical framework conditions of the Internet. In this respect, Dataforce does not warrant that the Dataforce sets of data will be accessible at all times, or that the data will at all times be retrievable.
7.5 A right of the customer to terminate the contract for failure to grant use pursuant to Sec. 543 (2) no. 1 German Civil Code (Bürgerliches Gesetzbuch – “BGB”) will only exist if the rectification of the defect does not occur within a reasonable period of time or must be considered to have failed.
8.1 Dataforce assumes no liability for the sets of data being suitable for any particular use intended by the customer.
8.2 Dataforce will be liable for damages in accordance with the statutory provisions for bodily injury and for damage according to the German Product Liability Act.
8.3 For any other damage or losses, Dataforce will be liable according to the following provisions unless otherwise stipulated in any guarantee given by Dataforce.
8.3.1 Dataforce will be liable according to the statutory provisions for damage or losses caused by fraudulent conduct as well as for damage or losses caused by willful misconduct or gross negligence of Dataforce or of the legal representatives or executive employees of Dataforce.
8.3.2 Dataforce’s liability for damages will be limited to the amount of the foreseeable damage or loss that is typical of the contract
for damage or losses resulting from a slightly negligent breach of contractual obligations or of obligations the performance of which is indispensible for the proper performance of the contract and on compliance with which the contract partner can generally rely (so-called cardinal obligations), as well as
for damage or losses caused deliberately or through gross negligence by persons with simple functions whom Dataforce employs in the performance of its obligations.
8.4 Without prejudice to the preceding provisions, contributory fault on the part of the customer – in particular, insufficient assistance, faulty organization, insufficient data backups or breach of other contractual duties – will reduce the amount of the claim for damages, if any. The customer is aware that certain risks (e.g. risk of viruses) cannot be entirely controlled technically according to the current state of technology in the case of online use via the Internet and that especially the transfer of data to the customer via the Internet is outside the sphere of control of Dataforce. It will be the customer’s own responsibility to take precautions against the technical risks related to the use of the system.
8.5 The customer shall be obligated to notify Dataforce without undue delay in writing of any damage or loss within the meaning of the above liability clauses, or to have any such damage or loss recorded by Dataforce, so that Dataforce is informed as soon as possible and can mitigate the damage or loss jointly with the customer, where possible.
8.6 In all other cases, any and all liability of Dataforce – especially no-fault liability for defects existing at the time of formation of the contract pursuant to the first alternative of Sec. 536 a (1) German Civil Code as well as liability for damage or losses caused by slight negligence – shall be excluded.
9. Term of Agreement
9.1 The contract concerning the ongoing use of Dataforce products will be entered into for the agreed fixed term. If a fixed term is not agreed upon, the contract will be entered into for the duration of one year and will then automatically be renewed for successive one-year periods unless the contract is terminated before the expiry of the respective contract year with 3 months notice, effective at the end of the term.
9.2 This does not affect the right to terminate the contract without notice for cause. The parties shall particularly be entitled to terminate the contract without notice for cause if:
the other party commits a serious breach of its contractual obligations and continues such breach despite a warning or the expiration of a period of time set for remedial action to no avail;
insolvency proceedings against all or part of a party’s assets are applied for, instituted, or refused for lack of assets;
an insolvency event, as defined in Sections 17 to 19 German Insolvency Code (Insolvenzordnung – “InsO”) has occurred at either of the parties;
the financial situation of either of the parties deteriorates to such an extent that the proper performance of the contract can no longer be expected, even if an insolvency event within the meaning of Sections 17 to 19 German Insolvency Code has not occurred;
the customer is more than one month late with the payment of an amount of remuneration due and fails to pay despite a subsequent request for payment.
9.3 If the contract concerning the ongoing use of Dataforce products ends, the customer will no longer be authorized to access the Dataforce databases. Taking over further data will no longer be permissible from the time the contract ends. The customer will be entitled, however, to continue to use the data taken over by such point in time according to the provisions of no. 4 above.
10. Confidentiality / Data Protection
10.1 Dataforce will for an unlimited duration maintain the confidentiality of any and all information of which it becomes aware and which can be identified as a trade or business secret of the customer, and Dataforce will neither record nor disclose or otherwise exploit such information to the extent not necessary to achieve the purpose of the contract.
10.2 When processing the customer’s own addresses and files, Dataforce will comply with the provisions of the German Federal Data Protection Act and Dataforce will not without permission store the submitted data or disclose them to any third party.
11.1 These General Terms and Conditions and the entire legal relations between the parties shall be governed by, and construed in accordance with, the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) signed in Vienna on 11 April 1980.
11.2 Place of performance and place of jurisdiction for all disputes arising out of the contracts entered into on the basis of these General Terms and Conditions shall be Frankfurt am Main, Germany.
11.3 Dataforce may commission third parties with the provision of the contractual services and assign or transfer single rights to third parties.
11.4 All changes and additions to the contracts entered into between Dataforce and the customer with the present General Terms and Conditions as an integral part thereof shall be in writing. This requirement of the written form shall equally apply to any amendment of this clause requiring the written form itself. Verbal ancillary agreements have not been made.
11.5 Should single provisions of these General Terms and Conditions be or become invalid or contain a gap, this shall not affect the remaining provisions hereof. The parties undertake to agree in lieu of the invalid provision on such legally valid provision as comes closest to the economic purpose of the invalid provision or as closes the existing gap.