1. Scope of application and subject of the contract
1.1 Usercentrics GmbH, Sendlinger Str. 7, 80331 Munich (hereinafter referred to as “Usercentrics“) provides all services to its customers on the basis of these terms and conditions (hereinafter referred to as “GTC“), unless otherwise agreed in the respective contract. “Clients” within the meaning of these General Terms and Conditions are companies, legal entities under public law and special funds under public law.
1.2 These GTC apply to Usercentrics services. Usercentrics services within the meaning of these GTC include the provided software and provided Usercentrics-codes for integration into Customer presences.
1.3 These GTC apply exclusively; conflicting or differing general terms and conditions of the Customer do not apply, unless Usercentrics has expressly agreed to their application in writing. Differing general terms and conditions of the Customer shall not become part of the contract even if Usercentrics executes an order of the Customer without contradicting the general terms and conditions of the Customer referred to in the order. If, in addition to the actual conclusion of the contract, the Customer requires to issue a separate order for its internal processing, any of the Customer’s General Terms and Conditions listed therein shall not apply.
2. Conclusion, Duration and Termination of Contract
2.1 The contract is concluded upon signature by both parties.
2.2 The term of the contract and, accordingly, the billing shall begin upon setup, i.e. the time at which the Usercentrics Code is provided, but no later than the date defined in the contract offer in the event that the technical implementation could not yet be carried out by the Customer or due to other delays for which the Customer is responsible. “Usercentrics-Code” means the code provided by Usercentrics, which is integrated into the Customer presence and carries out the data transfer to the Usercentrics servers.
2.3 The term of the contract is twelve months, unless a different term has been contractually agreed (hereinafter “Regular Contract Term“). The contract shall be automatically extended for the term of the Regular Contract Term, unless terminated by a contracting party with a notice period of 4 weeks to the end of the respective contract. The termination does not require any justification and must be declared in writing to the other party. The right to extraordinary termination of both parties remains unaffected.
2.4 Usercentrics is entitled to irrevocably delete all data stored during the term of the contract after termination of the contract. At the request of the Customer, a data export can be made according to the specifications of Usercentrics. In this case, the Customer is responsible for storing his data on his local system in good time. In so far, as this concerns personal data, the provisions of the Data Processing Agreement (DPA) take precedence.
2.5 Upon termination of the contract, the Customer is obligated to delete without request all reproductions of the provided software and the Usercentrics-code. If the Usercentrics-code is not or not completely removed from the Customer’s presences immediately after the end of the contract, Usercentrics is entitled to demand the fee agreed with the Customer for the duration and until the Usercentrics-code is completely removed from the Customer’s presences. The removal of the Usercentrics-code is to be regarded as incomplete, among other things, if data is still transmitted from the Customer’s presences to the Usercentrics servers.
3. Prices and Terms of Payment
3.1 The prices for the services used by the Customer are determined by the signed contract or completed online contract offer. Unless otherwise stated, the prices are annual net prices in Euro and are additional to any applicable statutory sales tax.
3.2 The calculation of the base fee to be paid by the customer results from the contract offer or or completed online contract offer. The basis for the calculation of the base fee is the sum of the sessions per year on the customer presences, as described in the contract offer. At the time the contract is concluded, the expected number of sessions is estimated. The Customer shall provide Usercentrics with the information necessary for calculating the base fee. Usercentrics reserves the right to check the Customer’s information on the sessions and, in the event of deviations, to use the measured sessions as the basis for calculating the base fee. The verification shall be carried out by counting the sessions by querying the Settings ID. The resulting base fee, for the entire contract year, is payable in advance. Payment must be made within 30 days of the invoice date.
3.3 At the end of the expired contract year, the base fee will be recalculated based on the actual number of sessions in the expired contract year. There will be no repayment for overestimated calculations. The evaluation of the actual annual meetings shall be made available no later than seven working days after the end of the respective billing period. Should this not be done, Usercentrics shall be entitled to use the data from the query of the Settings IDs as the basis for invoicing. In this context, the Customer may provide the data up to 14 days after invoicing and thus correct the calculation by the actual accesses. Individual contractual provisions shall take precedence over these.
3.4 Unless otherwise agreed, invoicing shall be done annually in advance. Invoices for managed services are sent after service has been provided. Usercentrics is entitled to send the invoice in the form of an email.
3.5 Payment is due 30 days after the invoice date. The invoice amount must therefore be credited to the Usercentrics account within 30 days of the invoice date.
3.6 Customers may only offset with counterclaims that have not been contradicted or that have been recognized by a court.
3.7 A change within the packages offered by Usercentrics with a higher annual fee is possible at any time. The desired change must be indicated informally and requires confirmation by Usercentrics in order to be effective. The tariff change is binding and is considered to be a new contract under the terms and conditions applicable to the chosen tariff. With the change to another tariff, a new Regular Contract Term for the use of the Usercentrics software begins. Unused usage fees of the old contract are counted against the fees of the new contract.
3.8 After the expiry of the Regular Contract Term, Usercentrics is entitled to change the agreed prices in compliance with the following principles:
3.8.1 Usercentrics may, at its reasonable discretion, change the prices with a notice period of two months by a declaration of adjustment to the Customer.
3.8.2 A price increase as a result of a price adjustment may only take place once within a period of 12 months.
3.8.3 A price adjustment can be made both up and down. A price increase may only take place to the extent that cost increases that occurred in the meantime on the part of Usercentrics are compensated; an increase in profit is not permitted. Price-forming factors that can increase the total cost include employee costs, infrastructure costs, license costs, taxes, and levies. The decisive factor is whether the total costs increase (which is why individual cost items have to be netted).
3.8.4 If a price increase has taken place during an ongoing contractual relationship, the Customer may demand that the prices be reduced accordingly in the event of a decrease in the total cost.
3.8.5 In the case of a request of a price increase, Usercentrics must inform about the circumstances that have led to an increase of the total costs.
3.8.6 If the price increase is not just insignificant, the Customer is entitled to a special cancellation right. An increase is insignificant if the currently agreed upon prices increase by less than 5%. The special right of termination must be declared within one month of receipt of the declaration of adjustment. After a special termination, the contractual relationship ends on the day preceding the date of the announced price increase.
4.1 The nature of the Usercentrics services is conclusively regulated in the contract and the documentation of the Usercentrics services. A material defect shall only be given if a deviation from the documentation of the Usercentrics Services or contractually agreed quality differs significantly. A further quality agreement requires explicit written confirmation. A particular quality cannot be derived from advertising materials or public statements if the specific content has not been expressly confirmed in writing by Usercentrics. The assumption of a guarantee is only validly agreed if Usercentrics explicitly confirms it in writing.
4.2 Insofar as the Customer can assert claims for defects against Usercentrics regarding Usercentrics’ services throughout the course of providing a paid service such as in the event of defects in the software or Usercentrics-code provided, the defects shall be eliminated by Usercentrics, at Usercentrics’ option. This shall be undertaken either by providing a modified version of the software or the Usercentrics-code (e.g. an update) or by providing the Customer with reasonable instructions for a workaround, provided that this does not unreasonably impair the usability of the Usercentrics Services.
4.3 In the case of a free service provision (Free Trial and Package “Free”) Usercentrics is not obliged to rectify the defect.
4.4 Warranty claims of the Customer are time-barred within one year. This does not apply if the defect was caused intentionally or through gross negligence, if a defect caused by simple negligence has resulted in injury to life, body or health, or if a guarantee is given for the quality of the contractual service. The commencement of the limitation period is determined in accordance with the statutory provisions.
5. Customer’s Obligations to Cooperate
5.1. The Customer receives authentication tokens that identify and authorize him to access the APIs and other relevant components of the Usercentrics services, such as data storage or user interfaces. It is the Customer’s responsibility to ensure the secure retention of such authentication information and to prevent access of unauthorized third parties. The Customer provides Usercentrics with a list of IP addresses authorised to access the APIs and keeps Usercentrics informed of any changes relevant to the authorized IP addresses. The Customer will have access to the latest documentation for the API endpoints that are made available to the Customer for interaction with the service. The documentation may be provided in various formats, in particular via an online website with authentication mechanisms of Usercentrics and/or third parties.
5.2 The Customer must inform himself about the essential functional features of the Usercentrics services and their technical requirements (e.g. with regard to hardware requirements, the operating system, databases, interfaces). It is the Customer’s responsibility to seek advice in case of doubts from Usercentrics or expert third parties before the conclusion of the contract. The Customer must ensure the technical requirements necessary for the error-free integration of the Usercentrics services in his presences.
5.3 The Customer is solely responsible for checking whether the contractually agreed Usercentrics services meet the legal requirements that apply to the Customer. In particular, it is solely the Customer’s responsibility to choose a configuration of the Usercentrics services which complies with applicable data protection regulations. Usercentrics does not provide legal advice in this regard.
5.4 The Customer grants Usercentrics the right, which may be revoked at any time, to use the Customer’s name and logo as a reference for its own advertising purposes for the duration of the contract.
6. Grant of Rights
6.1 The Customer may only use the Usercentrics services if this is necessary for the contractual use. Usercentrics grants the Customer a simple, non-transferable right to use the Usercentrics Services, limited in time to the duration of the contract. All copyrights and other intellectual or industrial property and exclusive rights to services developed or made available in accordance with the contract, in particular software, databases or know-how, shall remain with Usercentrics or their Licensors.
6.2 The Customer is not permitted to modify or otherwise manipulate any software or Usercentrics-codes provided by Usercentrics. Furthermore, the Customer is not permitted to change or remove any marks, copyright notices and confidentiality notices in any software or other materials provided or made available by Usercentrics. Mandatory legal rights of the Customer according to §§ 69d f. Urheberrechtsgesetz (German Copyright Act) shall remain unaffected.
6.3 Usercentrics may assume that the Customer has all necessary rights of use to all software installed or operated by the Customer interacting with the Usercentrics services.
6.4 Usercentrics may, under the conditions set out in this section, create anonymised analyses of aggregated data for which (partially) Customers and information resulting from the Customer’s use of the Usercentrics services are used (“Analysis”). The data is anonymized and aggregated for analysis, so that it is impossible to draw conclusions about individual companies or individuals. The analytics data is used for product improvement, development of new products and services, resource and support improvement, product performance improvements, security and data integrity review, identification of industry trends and developments, creation of indices and anonymous benchmarking.
7. Data Protection and Confidentiality
7.1 For the processing of personal data on behalf of the Customer, the parties conclude a separate Data Processing Agreement. In the event of contradictions, their regulations precede these General Terms and Conditions.
7.2 Each party protects the confidential information of the other party from use or access by unauthorized individuals with reasonable care.
7.2.1 “Confidential Information” means (i) any information exchanged between the parties in the context of or in connection with this Agreement, either expressly marked in writing as “confidential” or in a similar manner, (ii) oral information expressly designated by the issuing party as confidential, and (iii) regardless of the above provisions, any information from which it is clear that they need to be kept confidential.
7.2.2 The obligation of confidentiality does not apply to information that is already generally known at the time of conclusion of the contract or which can verifiably become subsequently known without breach of the contractual obligations. The obligation of confidentiality also does not apply to confidential information to the extent that the disclosing party may prove to them that it (i) has obtained or received it lawfully from third parties; (ii) for the provision of contractual services to the other party, must be passed on to third parties legitimately engaged for this purpose; (iii) must be disclosed by law or by decision of a court or an order of an authority; or (iv) by professionally committed advisors and lawyers.
7.2.3 In the event that one of the parties has reason to believe that there has been an unauthorised loss, access or disclosure of the other party’s confidential information, it shall notify the other party without delay.
8. Right of Modifications
8.1 Usercentrics provides the services according to the respective technological state of the art and in such a way that they are oriented to the interest of all Customers of Usercentrics. Usercentrics is entitled to adapt and change the range of services offered by Usercentrics to general technical progress. Usercentrics does not have to pay attention to possible downward compatibility with third-party software that is not up-to-date and/or to possible interoperability with third-party software; unless such interoperability is expressly agreed as a quality. Usercentrics will announce significant technical changes as far as possible and reasonable, in good time in advance. If a technical change in this sense represents an unacceptable change for the Customer, the Customer shall have a special right of termination.
8.2 Changes to these GTC will be offered by Usercentrics in text form no later than two months before the proposed date of their effective date. The contracting party shall be considered to have given its consent if it has not notified its rejection before the proposed date of effectiveness of the amendments. Usercentrics will specifically draw the Customer’s attention to this consent requirement.
9.1. Usercentrics is liable in accordance with the statutory provisions in the event of gross negligence, intentional action, malice or a guarantee as well as in the event of injury to life, body or health. Liability pursuant to product liability law also remains unaffected
9.2 In all other cases, Usercentrics shall only be liable in the event of negligent breach of essential contractual obligations; thus an obligation which is essential for the achievement of the purpose of the contract (cardinal obligation). In the latter case, Usercentrics’ liability shall be limited to the amount of damage that is foreseeable and typical for the type of subject matter of the contract.
9.3 In the case of liability under Section 9.2, liability is limited to EUR 10,000.00.
9.4 Insofar as the liability of Usercentrics is excluded or limited, this also applies to the personal liability of the employees, other employees, institutions, representatives and vicarious agents of Usercentrics.
9.5 In the event of liability for intent, gross negligence, personal injury or in accordance with the Product Liability Act (German “Produkthaftungsgesetz”), the statutory limitation periods apply. Otherwise, a limitation period of one year applies to all claims for damages or compensation of futile expenses of the Customer in the event of contractual and non-contractual liability. The limitation period begins in accordance with the statutory provisions.
10.1 Usercentrics is entitled to use subcontractors in whole or in part for the services owed. Any deviating provisions of a separate Data Processing Agreement shall remain unaffected.
10.2 The contractual relationship between the contracting parties is exclusively subject to the law of the Federal Republic of Germany with the explicit exclusion of the UN Convention on Contracts for the Sale of Goods. The exclusive place of jurisdiction for all disputes arising out of and/or in connection with the contract between Usercentrics and the Customer is, to the extent permitted by law, Munich.
10.3 Amendments and additions to the contract as well as all declarations of intent relevant to the contract and declarations for the exercise of design rights, in particular terminations, reminders or deadlines, must be in writing, unless another form in the contract is expressly provided for. This also applies to the renunciation of the written form requirement.