IFC GmbH

GENERAL TERMS AND CONDITIONS (GTC)

 

These General Terms and Conditions are valid between IFC GmbH, Trimburgstraße 2, 81249 Munich, Germany, (hereinafter referred to as “IFC”) and the Customer (hereinafter also referred to as “User”). This agreement regulates the use of the tools provided by IFC, inter alia, IFC-BusinessCockpit, IFC-InventoryManager, IFC-CategoryAnalysis, IFC-ASINCrawler (hereinafter referred to as “Services” or also referred to as “Contractual Software”).

1. Scope

1.1 The General Terms and Conditions are valid for all current and future contracts with contractors within the meaning of Section 14 of the German Civil Code (BGB), public-law legal entities and special public-law funds.

1.2 The General Terms and Conditions apply exclusively. Deviating, contradictory or supplemental general terms and conditions of the Customer shall only become an integral part of the contract if and insofar as IFC has explicitly consented to their validity. Deviating, contradictory or supplementary general terms and conditions of the Customer will also not become an integral part of the contract, if IFC performs the service unreservedly or enables access to the services unreservedly in full knowledge of the Customer’s general terms and conditions.

2. Services, prices and payment

2.1 The scope of Services, the licensing model, the composition, the purpose and the operating conditions of the contractual Services arise from the respective service description on the website of IFC or the visited AppStore or WebStore, where the contractual Services can be acquired.

2.2 Depending on the licensing model, IFC will grant the Customer the non-exclusive, non-transferable right of use to the Contractual Software shown in Clause 4.

2.3 Services over and above the contractually agreed scope of Services, such as the development of customized solutions or required adaptations, require a separate agreement.

2.4 Unless agreed otherwise on a case-by-case basis, the current prices plus statutory sales tax at the time of the respective conclusion of the contract shall apply.

2.5 Unless agreed otherwise, all billed amounts shall fall due immediately.

2.6 The payment of the fees shall be made via credit card or PayPal and/or via the payment method stored in the selected App- or WebStore.

2.7 Default interest will be charged at 9 percentage points above the respective base interest rate. The interest is due immediately. We reserve the right to assert a higher default compensation rate. The default compensation also includes potential foreign exchange losses.

3. Account, password and security

3.1 The Customer must protect the access rights, as well as identification and authentication information allocated to him and/or the users from access by third parties and not disclose them to unauthorized persons.

3.2 Over and above the functionality of the Contractual Software, archiving or data backup is not performed by IFC. The Customer is solely responsible for backing up the data entered by him or generated by the Contractual Software.

3.3 The contractual Services can only be used by the Customer and only for the purposes agreed in the contract. Any non-contractual and/or unlawful use of the Services is prohibited. The Customer shall not receive any rights over and above this, particularly to the software or any infrastructure services that may be provided in the respective data center. Any further use requires the prior written consent of IFC.

3.4 The Customer can specifically not use the Services beyond the agreed scope of use or allow them to be used by third parties or make them accessible to third parties. The Customer is specifically not permitted to duplicate or sell software or parts thereof, or transfer, rent out or lend it for a limited time.

3.5 IFC is entitled to take appropriate technical measures to protect against non-contractual use. Such measures must not substantially affect the contractually-compliant use of the Services.

3.6 In the event of non-contractual violation of the scope of use by a User or in the event of unauthorized provision of use, the Customer must notify the provider, upon request, about all details available to him for the assertion of claims due to the non-contractual use at once, particularly the User’s name and address. In this case, IFC shall be entitled to compensation for damages against the Customer in the amount of the license fee, which would have been incurred in the case of contractually compliant licensing. ICF reserves the right to prove damages over and above this.

4. Licensing models, granting of rights, liability

4.1 For the Contractual Software, the respective agreed license model applies, namely “Software as a Service” (4.1.1), “Software leasing” (4.1.2) and “Software purchase” (4.1.3), under the following conditions.

4.1.1 “Software as a Service”

4.1.1.1 For the duration of the contract, IFC shall provide the Customer with the Services for use in the respective current version via the Internet in return for payment. For this purpose, IFC shall store the software on a server, which is accessible via the Internet.

4.1.1.2 The settlement period corresponds to the respective minimum term. The fee is payable at the beginning of the settlement period. An agreed set-up fee is payable at the beginning of the contractual term.

4.1.1.3 Price changes will be notified to the customer in good time for the next settlement period.

4.1.1.4 For the term of the contract, the User will receive the non-exclusive, non-transferable, non-sub-licensable right to use the Services for own use on a PC owned by him or in his possession.

4.1.1.5 IFC will provide access to the Services under IFC’s authority, i.e. from the interface between the data center and the Internet.

4.1.1.6 The Customer is aware that restrictions or impairments of the Services can occur, which are outside of IFC’s control. These particularly include actions by third parties, who are not acting on behalf of IFC, technical conditions of the Internet, which are not under the control of IFC, and force majeure. The hardware and software and technical infrastructure used by the Customer can also have an influence on IFC’s Services. If such circumstances have an influence on the availability or functionality of the service provided by IFC, this shall not have any implications for the contractual compliance of the Services provided.

4.1.1.7 No-fault liability by IFC due to deficiencies which already existed at the time of conclusion of the contract is excluded.

4.1.1.8 The provision of the contractually agreed Services shall occur from the contractually agreed date, initially for the duration of the agreed term. During this minimum term, early ordinary cancellation is excluded for both parties.

4.1.1.9 If the contract is not canceled at the end of the minimum term, the contract shall extend, in each case, by the duration of the minimum term, until ordinary cancellation has been made at the end of the respective extension period.

4.1.1.10 The right of each contracting party to extraordinary cancellation for good cause remains unaffected.

4.1.1.11 In good time, prior to the termination of the contract, the Customer will independently back up his databases (such as by downloading). The Customer will not normally have access to his databases after the termination of the contract, for reasons of data protection law.

4.1.2 “Software leasing”

4.1.2.1 For the duration of the contract, IFC shall provide the Customer with the Services for use in the respective current version via the App- and/or WebStore in return for payment.

4.1.2.2 The settlement period corresponds to the respective minimum term. The fee is payable at the beginning of the settlement period. An agreed set-up fee is payable at the beginning of the contractual term.

4.1.2.3 Price changes will be notified to the customer in good time for the next settlement period.

4.1.2.4 For the term of the contract, the User will receive the non-exclusive, non-transferable, non-sub-licensable right to use the Services for own use on a PC owned by him or in his possession.

4.1.2.5 IFC shall make access to the Services available in the App- and/or WebStore.

4.1.2.6 The Customer is aware that restrictions or impairments of the Services can occur, which are outside of IFC’s control. These particularly include actions by third parties, who are not acting on behalf of IFC, technical conditions of the Internet, which are not under the control of IFC, and force majeure. The hardware and software and technical infrastructure used by the Customer can also have an influence on IFC’s Services. If such circumstances have an influence on the availability or functionality of the service provided by IFC, this shall not have any implications for the contractual compliance of the Services provided.

4.1.2.7 No-fault liability by IFC due to deficiencies which already existed at the time of conclusion of the contract is excluded.

4.1.2.8 The provision of the contractually agreed Services shall occur from the contractually agreed date, initially for the duration of the agreed term. During this minimum term, early ordinary cancellation is excluded for both parties.

4.1.2.9 If the contract is not canceled at the end of the minimum term, the contract shall extend, in each case, by the duration of the minimum term, until ordinary cancellation has been made at the end of the respective extension period.

4.1.2.10 The right of each contracting party to extraordinary cancellation for good cause remains unaffected.

4.1.3 “Software purchase”

4.1.3.1 The User will receive the non-exclusive, non-transferable, non-sub-licensable right to use the Services for own use on a PC owned by him or in his possession.

4.1.3.2 If the customer is a contractor, he must inspect the Contractual Software for obvious defects immediately after receipt and notify these to the seller at once, otherwise, a warranty for these defects is excluded. The same applies if such a defect appears at a later date. Section 377 HGB [German Commercial Code] applies.

4.1.3.3 With the exception of claims for damages, warranty claims due to material defects shall expire in two years, or in one year if a consumer is not involved in the transaction. The limitation period shall begin with the download of the contractual software in the App- and/or WebStore.

4.2 The Services can be used exclusively in an unmodified form. It is specifically inadmissible to decompile, extract or convert (reverse engineering), edit or copy the Services or parts thereof.

4.3 The User is entitled to create a backup copy, if this is necessary for safeguarding future use.

4.4 Copyright notices and other features that are intended for program identification must not be removed or modified.

5. Non-disclosure

5.1 The contracting parties are obligated to maintain non-disclosure regarding business and trade secrets, as well as other confidential information, which becomes known in relation to the execution of the contract. The contracting parties will also impose these obligations on their employees and potential third parties that are appointed.

5.2 “Confidential information” is all of the information and documentation about the business transactions of the other party concerned, which the other party becomes aware of, in particular, but not exclusively, sales and product data.

5.3 The contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is subject to security risks. With this type of communication, they will therefore not enforce any claims which are due to the lack of encryption, unless encryption has been arranged in advance.

6. Data privacy

6.1 If IFC is able to access the Customer’s personal data or from its area, IFC will act exclusively as a data processor and will only process and use this data for the execution of the contract. IFC will observe the Customer’s instructions for handling these data. The Customer shall be liable for any disadvantageous consequences of such instructions for the execution of the contract. The Customer will agree with ICF on the details for handling the Customer’s data by IFC in accordance with the requirements of data privacy law.

6.2 The Customer will remain the controller, both in the general contractual relationship, as well as within the meaning of data privacy law. If the Customer processes personal data in connection with the contract (including collection and use), he shall guarantee that he is authorized to do so under the applicable, particularly data privacy regulations and shall indemnify IFC against third-party claims in the event of a violation.

6.3 The following applies to the relationship between IFC and the Customer: With respect to the data subject, the Customer shall bear the responsibility for the processing (including collection and use) of the Customer’s personal data, except if IFC is responsible for any claims by the data subject, due to a breach of duty, which is attributable to IFC. The Customer will examine, process and answer any inquiries, applications and claims from the data subject responsibly. This also applies to a claim against IFC by the data subject. IFC will support the Customer as part of its duties.

6.4 IFC guarantees that the Customer’s data will exclusively be stored in the territory of the Federal Republic of Germany, in a Member State of the European Union or another Contracting State to the Agreement on the European Economic Area, unless agreed otherwise.

7. Indemnification

7.1 The Customer is obligated to indemnify IFC against all claims by third parties on the basis of legal infringements which are due to the unlawful use of the Service object by him or occur with his approval. If the Customer recognizes, or must recognize, the threat of such a violation, a duty exists to notify IFC at once.

7.2 IFC can revoke the Customer’s access authorization, if the Customer oversteps his permitted use significantly or violates the regulations on protection from unauthorized use. The provider’s claim to compensation for use over and above the agreed use remains unaffected.

7.3 For each case, in which a contractual Service is used unauthorized within the Customer’s area of responsibility, the Customer shall pay compensation for damages in the amount of the usage fee. The Customer reserves the right to prove that the unauthorized use is beyond the Customer’s control or that only significantly lower damages exist. IFC remains entitled to assert further claims for damages.

8. Customer’s notification duty

8.1 The Customer is obligated to notify IFC of any malfunctions, faults or impairments to the Services at once and as precisely as possible.

9. Updates

9.1 No obligation exists to provide updates. However, IFC is entitled to provide updated versions of the Services or improvements to the Services at its own discretion. IFC will inform the Customer about updated versions and corresponding terms of use electronically and make these available accordingly.

10. Limitation of liability

10.1 IFC is only liable for the Customer’s damages due to premeditated or grossly negligent conduct by IFC, for personal injury and damages under the product liability act, on the basis of the statutory provisions. This also applies to damages which are caused by legal agents of IFC.

10.2 In the case of simple negligence, IFC is only liable

a) for damages due to injury to life, limb or health,

b) for damages from the infringement of a material contractual obligation (obligation, the fulfillment of which make the proper execution of the contract possible at all and which the contracting party can generally rely on and trust in being complied with); in this case, the liability of IFC is limited to compensation for the foreseeable, typically occurring damages.

10.3 Ceteris paribus, liability by IFC is excluded.

 

11. Warranty

11.1 In the case of a material defect, IFC can satisfy supplementary performance by providing IFC updates.

11.2 In the case of an insignificant reduction of the fitness for purpose of the Services for contractual use, the Customer has no rights due to defects.

 

Section 12 Final provisions

12.1 The law of the Federal Republic of Germany applies, to the exclusion of the UN Sales Convention. The definitive version of these General Terms and Conditions is the version that is available in the German language.

12.2 If the Customer is a trader, a public-law legal entity or a special public-law fund, the place of performance and place of jurisdiction for all disputes arising from contractual relationships between the Customer and IFC is the registered office of IFC.