Unless otherwise expressly agreed the following terms govern your ongoing use of the details Booking and Label Service:
By accepting this agreement, either by clicking a box indicating your
acceptance or by executing an order form
that references this agreement, you agree
to the terms of this agreement.
If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms "customer" or "you" refer to such entity and its affiliates.
If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the Details Services.
The Annexes to this Agreement constitute an integral part of this Agreement.
Parties of this agreement are Berlin3 Services GmbH, represented by managing director Stephan Rombach, in the following also designated as provider, and you, the customer.
2. Purchased Services
2.1 This agreement grants a fixed-term right of use for the intended
usage of the details Booking and Label Service
offered by the provider under the business
designation Berlin3 Services GmbH or another
For using this service the browser Mozilla Firefox is required as well as a state of the art network environment with broadband internet access. Other browsers may function but are not supported. Ony default browser configurations and settings are supported. Any hardware or software developed and distributed by third parties, which might be necessary for this, is not part of the present agreement (see also section 5).
2.2 The provider shall make the purchased services available to the customer pursuant to this agreement and the relevant order forms during a subscription term. The customer agrees that his purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by the provider regarding future functionality or features.
2.3 Unless otherwise specified in the applicable order form, services
are purchased as user subscriptions and may
be accessed by no more than the specified
number of users.
Additional user subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions.
The added user subscriptions shall terminate on the same date as the pre-existing subscriptions.
2.4 User subscriptions are for designated users and cannot be shared or used by more than one user but may be reassigned to new users replacing former users who no longer require ongoing use of the services.
3. Scope of the Services
3.1 The provider uses commercially reasonable efforts to make the Purchased Services available for the customer 24 hours a day, 7 days a week.
3.2 Planned downtime (of which the provider shall give at least 8 hours notice and which the provider shall schedule to the extent practicable during the weekend hours from 12:00 a.m. CET time Friday to 3:00 a.m. CET time Monday) or any unavailability caused by circumstances beyond the providers reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or internet service provider failures or delays are excluded from the providers liability without limitation.
3.3 The provider supplies the Purchased Services only in accordance with applicable laws and government regulations.
3.4 Basic, upgraded and support by telephone, the provision of services and work performances, in particular the data transfer from existing systems, the adjustment of special layouts and CIs or any other special adjustments of the services to the personal needs of the customer are not included in this subscription agreement. These services will be charged to the customer separately on basis of a separate agreement or quote. Therefore the current hourly rates are valid as contracted or announced through the provider.
4. Usage Rights and Liabilities
4.1 The customer is responsible for the compliance with this agreement by your subscribed users, as well as the accuracy, quality, integrity and legality of his data and of the means by which you acquired your data.
4.2 The customer uses commercially reasonable efforts to prevent unauthorized access to or use of the services, and will notify the provider promptly of any such unauthorized access or use, and use the services only in accordance with the user guide/instructions and applicable laws and government regulations.
4.3 The customer shall not make the services available to anyone other than subscribed users, nor sell, resell, rent or lease the services, interfere with or disrupt the integrity or performance of the services or third-party data contained therein, nor attempt to gain unauthorized access to the services or their related systems or networks.
4.4 Patent right references or - notes on the software may not be
removed by the customer.
4.5 All products of the provider are protected from unauthorized duplication actions by software and hardware technologies. The removal or evasion of such technical preventive measures is not permitted. The employment of such measures does not represent defects of the services.
5. Third Party Providers
5.1 The provider may offer integration with third-party applications. Any other acquisition by the customer of third-party products or services, including but not limited to third-party applications and implementations, customizations and other consulting services, and any exchange of data between the customer and any third-party provider, is solely between the customer and the applicable third-party provider. The provider does not warrant or support third-party products or services, whether or not they are designated by the provider as "certified" or otherwise, except as specified in an order form. No purchase of third-party products or services is required to use the services.
5.2 If the customer installs or enables third-party applications for use with services, the customer acknowledges that the provider may allow providers of those third-party applications to access his data as required for the interoperation of such third-party applications with the services. The provider is not responsible for any disclosure, modification or deletion of the data of the customer resulting from any such access by third-party application providers.
5.3 Service features that interoperate with Google services depend on the continuing availability of the Google API and program for use with the services. If Google Inc. ceases to make the Google API or program available on reasonable terms for the services, the provider may cease providing such service features without entitling the customer to any refund, credit, or other compensation.
5.4 The provider offers no guarantee that the data processed or provided by any third-party will be correctly parsed or imported into the systems of the provider and as such the customer is solely responsible for this data and any consequences of the use of this data.
6. Fees and Payment for Purchased Services
6.1 The customer is liable to pay all fees specified in all order forms here under. Except as otherwise specified herein or in an order form, all fees are quoted and payable in Euros.
6.2 Payment obligations are non-cancel able and fees paid are non-refundable.
6.3 User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof. Therefore, fees for user subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. The number of user subscriptions purchased cannot be decreased during the relevant subscription term stated on the order form.
6.4 The customer will provide the provider with valid and updated credit card information or with a valid purchase order. With providing these information to the provider, the customer authorizes the provider to charge such credit for all services listed in the order form for the initial subscription term and any renewal subscription term(s) as set forth in Section 10.2. If the order form specifies that payment will be by a method other than a credit card, the provider will invoice the customer in advance and otherwise in accordance with the relevant order form. All invoices provided to the customer that are not paid via credit card or SEPA may have a 15 EUR surcharge per invoice provided. Unless otherwise stated in the order form, invoiced charges are due with the invoice date. The customer is responsible for maintaining complete and accurate billing and contact information in the services.
6.5 If any charges are not received from the customer by the due date, then at discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or the provider may condition future subscription renewals and Order Forms on payment terms shorter than those specified in section 6.3.
6.6 If any amount owing by the customer under this or any other agreement for services of the provider is 30 or more days overdue 10 or more days overdue in the case of amounts the customer has authorized the provider to charge to credit card), the provider may, without limiting other rights and remedies, accelerate unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend services to the customer until such amounts are paid in full.
6.7 Unless otherwise stated, the fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " taxes"). The customer is responsible for paying all taxes associated with his purchases here under. If the provider has the legal obligation to pay or collect taxes for which the customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by the customer, unless he provides the provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.8 The setup fee includes a total of 10 hours of customer support and/or template customization and/or database import unless otherwise agreed upon between the customer and the provider. All time in excess of 10 hours will be billed at the going support rate outlined in section 6.10.
6.9 The per user charge to the customer is 49 EUR per month net of taxes.
6.10 Support costs 60 EUR per hour and is provided to the customer in four different ways: 1) Via telephone. If the customer contacts a representative of the provider via telephone and requests support then the customer will be charged the support cost at 30 minute increments. 2) Via email. If the customer contacts a representative of the provider via email and requests support then the customer will be charged the support cost at 5 EUR per email sent by the provider. 3) Via instant messanger. If the customer contacts a representative of the provider via instant messanger and requests support then the customer will be charged the support cost at 15 minute increments. 4) Inside the application. If the customer initiates a support request from inside the application then the support will be billed as outlined in the application.
6.11 Any requirement by the customer to retrieve data from a backup data source will be billed at 100 EUR per hour with a one hour minimum charge.
6.12 Any custom programming and/or programming consulting will be billed at up to 100 EUR per hour with a one hour minimum charge. Warranty of any custom programming is outlined in section 9.7.
6.13 The provider reserves the right to increase the service charge outlined in section 6.9 by up to 15% on the first day of every January or July.
6.14 The provider reserves the right to charge the customer 0.05 EUR per Gigabyte per month for any data stored on the service.
6.15 The provider reserves the right to charge the customer 0.10 EUR per month per Release where Release is defined by the provider.
6.16 SEPA. All SEPA payments which are reversed by the client or the payment is not otherwise successful, the client will incur an extra charge of 10 EUR.
6.17 Plugins. An activated plugin cannot be deactivated by the customer and the billing will be ongoing as outlined in the plugin information. The price of a plugin may change at a request by the provider of the plugin. Any increase in the monthly cost of a plugin allows the customer to cancel their use of the plugin.
7. Ownership / Proprietary Rights
7.1 Subject to the limited rights expressly granted here under, the
ownership and all intellectual or commercial
patent rights, title and interest in and
to the services, including all related intellectual
property rights are reserved by the provider.
The products are subject to the protection
of copyright and appropriate national and
international conventions. No rights are granted to the customer here under
other than as expressly set forth herein.
The ownership and the associated rights at contents, which the customer accesses by use of the service, are entitled to the respective contents offerer and are legally protected. The granted right of use in the context of this agreement does not include the right to the customer to use such contents.
7.2 The customer is not allowed to permit any third party to access the services except as permitted herein or in an order form, to create derivate works based on the services, copy, frame or mirror any part or content of the services, other than copying or framing on his own intranets or otherwise for his own internal business purposes, nor to reverse engineer the services, or access the services in order to build a competitive product or service, or copy any features, functions or graphics of the services.
7.3 The customer exclusively owns all rights, title and interest in and to all of his data.
7.4 Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
8.1 Definition of Confidential Information. As used herein, " Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (including Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2 Both parties commit themselves to protect all confidential information disclosed by any party to the other party within this agreement, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
8.3 In particular the customer commits himself not to disclose or use any confidential information regarding the content, concept and implementation of the service the provider is distributing, as well as its structure and programming or the terms of this agreement.
8.4 Both parties shall limit access to confidential information of the other party to those of its employees, contractors and agents who need such access for purposes consistent with this agreement and who have signed confidentiality agreements containing protections no less stringent than those herein.
8.5 The provider maintains appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the data of the customer. He is not allowed to modify, disclose the customer's data except as compelled by law in accordance with Section 8.6 (compelled disclosure) or as expressly permitted in writing by the customer.
8.6 The access to the customer's data by the provider in accordance
to provide the services, prevent or address
service or technical problems or at request
by the customer in connection with support
matters is excluded.
Any party may disclose confidential information of the other party if it is compelled by law to do so and will provide the other party with a prior notice of such compelled disclosure (to the extent legally permitted) .
9. Warranty and Guarantee Disclaimer
9.1. Claims for damages as well as requirements on substitution of futile expenditures are suspended opposite the provider and opposite its fulfillment and performing assistants, it is, that damage deliberately was caused.
9.2 The limitation of liability in accordance with section 9.2 is not valid with the injury of contract-substantial obligations, as well as with culpable injury of the life, the body or the health and with damage, which is based on the nonexistence of the guaranteed condition or is intended after the product liability law for the one adhesion.
9.3 The provider warrants that the services shall perform materially in accordance with the user guide.
9.4 In case of a defect of the service the provider has the obligation and the right to the supplementary performance first. Supplementary performance takes place via rework.
9.5 If the defect cannot be repaired within an appropriate period or the supplementary performance failed for other reasons, the customer can require for its choice reduction, resignation, payment of damages or replacement of futile expenditures. Payment of damages or replacement of futile expenditures regulates themselves thereby after the liability regulations of the present agreement. The cancellation of the contract does not exclude the right to payment of damages.
9.6 Each party represents and warrants that it has the legal power to enter into this agreement.
9.7 All custom programming is guaranteed to function at the time of delivery of the custom programming, however the provider provides no warranty that custom programming will work with future versions of the service. Custom programming services are provided to the client at the sole risk of the customer for future compatibility.
9.8 Any system of the provider which facilitates agreement between the customer and third parties is not warranted to have any legal standing whatsoever.
10. Term and Termination
10.1 This Agreement commences on the date the customer accepts it and continues until all user subscriptions granted in accordance with this agreement have expired or been terminated.
10.2 The user subscriptions purchased by the customer commence on the start date specified in the applicable order form and continue for the subscription term specified therein. Except as otherwise specified in the applicable order form, all user subscriptions will automatically be renewed for additional periods equal to the expiring subscription term or at least one year, unless either party gives the other notice of non-renewal at least 3 months before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless the provider have given the customer written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 20% over the pricing for the relevant services in the immediately prior subscription term.
10.3 Upon any termination for cause by the customer, the provider shall refund the customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by the provider, the customer has to pay any unpaid fees covering the remainder of the term of all order forms after the effective date of termination. In no event shall any termination relieve the customer of the obligation to pay any fees payable to the provider for the period prior to the effective date of termination.
10.4 Upon request by the customer made before the effective date of termination of a purchased services subscription, the provider will make available to the customer for download a file of his data in comma separated value (.csv) format along with attachments in their native format. After this date, the provider has no obligation to maintain or provide any of the customer's data and shall thereafter, unless legally prohibited, delete all of the customers data in her systems or otherwise in her possession or under her control.
11.1 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically either by clicking a box indicating your acceptance, or by executing an order form, by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
11.2 The present agreement regulates all legal relations of the contracting parties in connection with the contractual item. Additional contractual items or other regulations of the present agreement, written or verbal agreements does not insist, it is, this agreement is referring expressly to this purchase.
11.3 The parties agree upon the application of the right of the Federal
Republic of Germany under exclusion of the
Uniform Law on the International Sale of
Goods (CISG) and German international private
law regarding all legal relations from this
Area of jurisdiction is Berlin.