These General Performance Principles (hereinafter referred to as “GPPs”) apply for all contracts between Aimondo GmbH, Adlerstraße 72, 40211 Düsseldorf, Germany (hereinafter referred to as “PROVIDER”) and its contractual partner (hereinafter referred to as “CP”) concerning the commissioning of Internet research as a service. These GPPs only apply if CP is a company, a legal person under public law or a special fund under public law.
These GPPs shall also apply in their respective valid version as a framework agreement for future contracts concerning the commissioning of Internet research by CP, without PROVIDER having to refer to them again in each individual case.
These GPPs apply exclusively. Deviating, contradictory or supplementary general terms and conditions of CP are not acknowledged and even in the absence of express written objection of PROVIDER do not constitute contract content.
CP will be notified of modifications to these GPPs, after the granting of the research order, in writing or via email. If CP does not object to the informed changes within a time limit of 4 weeks from receipt of the respective modification notification, the notified changes shall be considered acknowledged by CP. In the event of a modification to these GPPs, CP will be made aware of the right of objection and the legal consequences of remaining silent.
Subject Matter of the Contract
The subject matter of the Contract is the commissioning of PROVIDER by CP for the execution of Internet research. CP may submit information about a research order to PROVIDER via an Internet portal to be named by PROVIDER (hereinafter referred to as “SYSTEM”) and access the research results (hereinafter referred to as “RESULTS DATA”) via this SYSTEM. PROVIDER grants CP no rights to the SYSTEM, and the granting of use rights to the RESULTS DATA to CP is carried out by PROVIDER in exchange for payment of the fees agreed to the extent indicated in these GPPs.
The service owed is the execution of research with resources available to PROVIDER about the Internet services agreed by the parties. The parties agree that the subject matter of the Contract is not a particular result of the research commissioned and carried out.
The provision of Internet access for CP does not constitute subject matter of this Contract.
Conclusion of the Contract
An offer to conclude a Contract concerning the execution of internet research can be made by CP using a form provided for this purpose by PROVIDER and submitted to PROVIDER by delivering it by email, fax or post - and via an online form, if arranged by PROVIDER.
If CP acts via an employee, this employee of CP that is submitting an offer to conclude a Contract for and in the name of CP guarantees to PROVIDER that they are correspondingly entitled and authorised to submit the statement by CP. Statements from the employee acting for CP shall for this purpose be attributed to CP in an independent, unrestricted manner. Until revocation by CP, the employee will be guided to the SYSTEM as a used for CP and as its authorised representative for matters related to the use of the SYSTEM. PROVIDER is entitled to guide the communication with the SYSTEM and the associated contractual relationship with CP via the user as a representative of CP. Should CP be subsequently addressed, this shall always concern CP directly, or indirectly through the user representing CP, without this being or having to be mentioned separately.
CP or the employee of CP submitting the offer to conclude a Contract will establish a user name and an adequately secure password for access to the SYSTEM upon submission of the offer or subsequently upon setting up access to the SYSTEM. The password may be changed by CP or the respective user at any time after successful conclusion of the Contract.
The data given with application will be checked for completeness and plausibility by PROVIDER. If the details are complete and plausible in the opinion of PROVIDER, and there are no other concerns from the perspective of PROVIDER, CP will be registered by PROVIDER and informed of this in text form (E-Mail). The notification will be given after the countersigning and submission of a contractual document or the submission of an application form countersigned by PROVIDER. This notification may also be transfered to CP via email or fax, and shall be considered acceptance of the offer submitted by CP to conclude a contract regarding the execution of Internet research as a service.
The business status of CP is to be proven towards PROVIDER, on request, by presenting a current commercial register extract and/or a current certificate from the relevant trade office, or a corresponding certificate from a comparable national administrative authority at the location of CP, in which the business activity of CP is clearly recognisable. Upon request, CP must also state the VAT identification number of CP to PROVIDER without delay.
There is no entitlement to a conclusion of a contract. PROVIDER is entitled, at its own discretion and without stating the reasons, to reject the conclusion of a contract or not to heed the offer.
SYSTEM of PROVIDER
PROVIDER shall ensure that the SYSTEM always corresponds to the latest tested technology.
PROVIDER shall keep storage space available on the SYSTEM for the respective current RESULTS DATA for CP for a duration of 5 working days from the storage of the data in the SYSTEM.
CP may generally access the SYSTEM on working days between 03:00 and 23:00 CET (hereinafter referred to as “ACCESS TIME”). At other times, there is the possibility that the SYSTEM will not be available due to maintenance work or for other reasons. CP will carry out maintenance work and other such work on the SYSTEM in such a way that the SYSTEM is available during an annual average of 98% of the ACCESS TIME for access to RESULTS DATA . As well as times of non-availability due to unscheduled maintenance work agreed upon between the parties, times of planned non-availability will not be taken into consideration in the calculation of non-given availability. The SYSTEM is planned to be unavailable for maintenance purposes every Sunday between 12:00 and 17:00 CET.
CP shall be free to transfer the RESULTS DATA from the SYSTEM.
PROVIDER shall be free to modify the SYSTEM at any time, as long as CP may access, view and download the RESULTS DATA requested by CP with the access data sent to CP.
Should access to the SYSTEM not be available for CP during the ACCESS TIME due to disruption to the SYSTEM, CP may request that PROVIDER provide access to the RESULTS DATA, in a manner to be recommended by PROVIDER.
Access to the SYSTEM
Should CP be a natural person, CP shall access the SYSTEM itself as a user. Should CP be a legal entity or a body under public law, CP must indicate a natural person of unrestricted legal capacity and with authorisation to represent as a user who shall access the SYSTEM for CP. PROVIDER is entitled at any time to request written proof from CP of the representation authorisation of the user, which must be sent to PROVIDER promptly by CP.
Responsibility for Access Data to the SYSTEM
The access data assigned to CP and/or the users registered for CP must be kept secret, protected by suitable and timely measures against access by third parties and not made accessible to unauthorised third parties.
It is the responsibility of CP to ensure that the SYSTEM and the RESULTS DATA accessible to CP is accessed exclusively by CP and/or the user registered for CP.
As soon as an indication exists that access data could be made known to unauthorised third parties, or that this could happen in the future, CP and the respective user are to inform PROVIDER of this in text form and immediately change the respective access data via the SYSTEM.
CP is liable for any use and/or other such activity that is carried out using its access data and/or that of a user registered for CP.
Research Implementation/Process - Commissioned Service
To the agreed extent, CP may compile per day the agreed number of products in a list of products to be researched (hereinafter referred to as “LIST”) and task PROVIDER with the implementation of corresponding research in consideration of the agreed parameters by placing the LIST in the SYSTEM. On the basis of the data entered by CP, the research will be performed by PROVIDER. The RESULTS DATA will then be provided to CP via the SYSTEM. CP is free to use the RESULTS DATA for its own business activities.
The LIST is to be compiled, formatted in accordance with the template provided by PROVIDER and kept ready for processing in xls, xlsx or CSV file format by CP.
After research is carried out on the basis of the LIST prepared by CP, the RESULTS DATA obtained will be compiled in separate lists, on list for each internet portal assigned for the research, and kept on the SYSTEM by PROVIDER for an appropriate time of at least 5 working days for download by CP.
If a corresponding separate additional agreement has been made, CP may compile one or more LISTS per day and transfer them for the execution of the research.
In the absence of any other agreement, CP may transfer one LIST per day during the ACCESS TIME in the given form to the SYSTEM of PROVIDER and thereby assign an agreed research. In this case, the RESULTS DATA will be kept in the SYSTEM for download by CP within 8-14 hours after the commissioning of the research by CP.
If separately agreed, CP may also compile further research orders in the form of other lists with products to be observed to the agreed extent (hereinafter referred to as “AD-HOC LISTS”) and transfer them to the SYSTEM of PROVIDER. The RESULTS DATA about this special research will be delivered - provided that the corresponding order corresponds with the previously agreed framework conditions - on the SYSTEM of the PROVIDER for download by CP 1 hour after the assignment of the order by transfer of the respective AD-HOC LIST by CP. An AD-HOC LIST may at the earliest be submitted at 8am on the respective day and furthermore only after the provision of the RESULTS DATA for previous regular research for CP by PROVIDER and at the latest by 7pm on the respective day by CP to PROVIDER as an assignment of special research via the SYSTEM.
Other Performances of PROVIDER
Further performances of PROVIDER may be agreed upon between the parties at any time in writing and will be carried out in exchange for compensation for the proven expenses at the generally applicable prices of PROVIDER at the time of the respective commissioning.
Commencement of the Contract
The contractual relationship regarding the use of the APPLICATION shall begin on a separately agreed date, or otherwise upon receipt of the confirmation by PROVIDER named in Fig. 3.4 of these GPPs.
Term and End of the Contract
The Contract will be initially concluded for a minimum duration of 1 year and shall be extended by 1 additional year in each case, if not terminated with a notice period of 1 month until the end of the minimum duration or the respective extension period.
If separately agreed, CP and PROVIDER are entitled within a test phase of a maximum of 3 months from the conclusion of the Contract, subject to agreement, to terminate the Contract at any time without giving reasons and observing a notice period of 1 month until the end of the month.
Each contractual party is entitled to extraordinarily terminate the contractual relationship upon presenting a good reason without observing a notice period.
Good reason within the meaning of Fig. 10.3 shall exist for PROVIDER in particular if CP has been in default of the fee payment for 2 months or is in default of the fee to be paid for 2 months. Correspondingly, good reason for CP shall exist in particular if PROVIDER cannot carry out the assigned research to its full extent. However, in the existence of a contractually provided requirement, a prevention/impossibility in individual areas of a research assignment will at the most constitute an entitlement to a temporary proportionate reduction in the fee to be paid.
A termination of the Contract must be in written form.
For the execution of the assigned research, CP shall pay PROVIDER, in accordance with the contractual agreement, a one-time fee or a monthly fixed-rate fee, the amount of which shall be determined by the research contract and/or the price list of PROVIDER in its respective version at the time of the conclusion of the Contract and later on its respective valid version. The parties may agree for CP to be provided a certain number of credits by PROVIDER for a monthly fixed-rate payment, which CP may use for the research assignment planned for CP in the respective contractual month, whereby the credits not used within that month will be forfeited upon the end of the respective month.
The provision of the storage space on the SYSTEM, from which the RESULTS DATA will be collected by CP, shall be free of charge for CP.
Upon payment of the agreed fee in accordance with Fig. 11.1 of these GPPs, the services owed by PROVIDER in accordance with the Contract in connection with the commissioned research shall be compensated.
PROVIDER is entitled to increase fixed-rate fees named under fig. 11.1 of these GPPs for the first time after 12 months have passed after the conclusion of the Contract and then in each case after the expiry of one contract year with written notice of 30 calendar days until the beginning of the following month, if and insofar as the applicable costs of PROVIDER for the proper execution of the Contract have increased. If the notified increase means an increase of the current valid fixed fees by more than 5%, CP will have the right to terminate the Contract with a notice period of 14 calendar days upon receipt of the notification. PROVIDER shall indicate this right of termination to CP together with the respective notification.
Other services, in particular those explicitly agreed to be liable for payment, will be charged by PROVIDER at cost as per the respective valid list prices of PROVIDER at the time of the assignment.
Fees will be owed plus VAT at the respective applicable statutory rate.
PROVIDER will charge CP the monthly owed fee at the end of each respective calendar month. Invoices are payable within 10 working days on their electronic receipt by CP.
If an invoice is not paid within the time period set out in the above Fig. 12.1 to the named account, CP must pay default interest for the duration of the payment default at a rate of 9 per cent above the respective base interest rate, plus a one-time default fixed fee of 40.00 EUR to PROVIDER.
Offsetting and Right of Retention
CP is only entitled to offset if its counterclaim has been established as legally valid, undisputed and/or acknowledged in writing by PROVIDER. CP is only entitled to exercise a right of retention if its counterclaim is based on the same contractual relationship.
If the payment of the agreed fee is not paid by CP after the occurrence of the payment default and a reminder from PROVIDER setting a time limit of 2 weeks, PROVIDER shall be entitled to immediately refrain from providing the service owed from the contractual relationship after the unsuccessful expiry of the set time limit, provided that PROVIDER has expressly notified CP of this in the reminder. The reminder may be sent by PROVIDER via email to the email address last provided by CP.
Use Rights for RESULTS DATA and SYSTEM
CP shall receive easy access to an area in the SYSTEM of PROVIDER intended for CP, in order to create lists for research commissioned by CP and access the RESULTS DATA after the execution of the research commissioned by CP. CP is explicitly not granted any rights to the SYSTEM.
CP will receive a simple right, unlimited by time or space, to the respective RESULTS DATA, which shall be used by and for CP in-house.
CP is not entitled to any rights that are not expressly granted above to CP. Any other use of RESULTS DATA and/or the SYSTEM requires prior explicit permission from the PROVIDER.
Non-Fulfilment of Main Performance Obligations
The main performance obligation in accordance with this Contract is the execution of commissioned research by PROVIDER. Whether and which results will be obtained during research by PROVIDER is not the object of the main performance obligations.
The parties agree that PROVIDER does not and cannot assume any responsibility and/or obligation for results to be found about all products on a LIST provided by CP for processing via the APPLICATION within the framework of the research, and the ability for them to be prepared as results by PROVIDER. The parties also agree that results can only be found during research if the respective online portal being researched is available and no malfunctions or access difficulties - temporary or more long-term - for which PROVIDER is not responsible occur regarding an online portal being monitored.
CP is expressly notified that the results provided to CP after successful research by PROVIDER represent a snapshot and may have already been updated or changed at the point in time in which the results lists are accessed by CP.
Should difficulties arise while carrying out the research over the Internet that limit the extent of the research that is feasible for PROVIDER with regard to the order specification of CP, not just in terms of individual search results, but also concerning portals that are searched through less than commissioned, this restriction and the effects of the restriction on the RESULTS DATA regarding the parties shall expressly not constitute any non-fulfilment of a main performance obligation by PROVIDER, provided that the restrictions did not demonstrably occur/appear within the sphere of PROVIDER. PROVIDER then has executed the commissioned research in accordance with the agreement . Should PROVIDER be unsuccessful in rectifying the occured extent reduction within 2 weeks from PROVIDER becoming aware of it, the agreed fee shall be reduced because of the restriction that occurred by 25% for every affected Internet portal that is being searched through. Should the extent reduction continue, the agreed fee shall be reduced by 50% for every affected Internet portal that is being searched through, after 4 weeks since PROVIDER became aware of it. A reduction of the fee shall be carried out in each case from the first of the month following the expiration of the time limit. In the case that 6 weeks have passed since PROVIDER has become aware of an extent reduction that has occurred, without PROVIDER being able to rectify the extent reduction, CP is entitled to terminate the contractual relationship for each affected Internet portal that is being searched through, with effect from the end of the following month.
PROVIDER is liable without limitation for all damage caused to CP by PROVIDER in the event of intent or gross negligence.
In the event of slight negligence, PROVIDER is liable in the event of injury to life, body or health.
In addition, PROVIDER shall only be liable if PROVIDER has violated a significant contractual obligation, the fulfilment of which makes the proper execution of the Contract possible in the first place, and the adherence to which the contractual partner regularly relies on and may rely on - in other words a so-called “cardinal obligation”. In these cases, the liability is limited to compensation for those damages that must be typically expected within the framework of the respective contractual relationship, in other words so-called “foreseeable damages typical of the Contract”.
A contractual party is only obliged to pay a contractual penalty if this is expressly provided in this Contract. The right to impose a contractual penalty does not need to be reserved. It may be offset.
Claims under product liability law remain unaffected.
The limitations of liability presented shall apply for the legal representatives and vicarious agents of PROVIDER accordingly.
PROVIDER is not obliged to fulfil the contractual obligations in cases and for the duration of force majeure. In this sense, the following circumstances in particular are to be regarded as force majeure:
fire/explosion/flooding for which PROVIDER is not responsible,
war, revolt, blockades, embargoes,
industrial action lasting over 6 weeks and for which PROVIDER is not at fault,
technical problems with the Internet or the corresponding telecommunications infrastructure which cannot be influenced by PROVIDER. This does not apply if and to the extent that PROVIDER also provides the telecommunications service.
Each contractual partner must inform the other partner immediately and in writing in the event of a case of force majeure.
Duties and Obligations of CP
CP will fulfil all duties and obligations that are necessary for the proper execution of the Contract; in particular, CP will
not access any unauthorised information or data, allow it to be accessed in programmes operated by PROVIDER, interfere with it or allow it to be interfered with, enter it or allow it to be entered into data networks of PROVIDER in an unauthorised manner, or support such an entrance;
indemnify PROVIDER against all claims of third parties that are based on unlawful access to the SYSTEM by CP or that result from legal disputes related to data protection law, copyright law or other such laws, that are caused by CP, and which are associated with the commissioning of research or access to the SYSTEM;
check data and information for viruses before sending them to PROVIDER and therefore use anti-virus programmes in line with the latest technological developments for this purpose;
notify PROVIDER promptly of defects in contractual services. Should CP refrain from providing notification in a timely manner for reasons CP is responsible for, this shall represent contributory negligence. If PROVIDER cannot find a remedy as a result of the inaction or delay of the notification, CP shall not be entitled to reduce the agreed fee in whole or in part, request compensation for damages caused by the defect or terminate the Contract extraordinarily because of the defect without observing a notice period. CP must show that it is not responsible for the failure to notify;
pay the agreed fee on time;
if CP transfers data/LISTS via the SYSTEM within the framework of a research assignment, secure it regularly and in accordance with the importance of the data, and create several safety copies, in order to enable its reconstruction in the case of loss of data and information.
CP and PROVIDER will maintain secrecy about all information to be treated confidentially that they become aware of within the framework of this contractual relationship, and only use this with third parties in prior written agreement with the respective other party - regardless of the purpose. Information to be treated confidentially includes information explicitly described as confidential by the issuing party and other such information of which the confidentiality is made clear in the circumstances of the transfer.
The obligations in accordance with the above Fig. 19.1 are omitted for such information or parts thereof for which the recipient party can demonstrate that it
was known or generally accessible to the party before the date of receipt;
was known or generally accessible to the public before the date of receipt;
was known or generally accessible to the public after the date of receipt without the party receiving the information being responsible.
Public statements of CP and/or PROVIDER about collaboration will only be made with prior mutual agreement. Exempted from this rule is the entitlement of PROVIDER to state the collaboration with CP as a reference in the location provided in the web presence of PROVIDER.
The obligations in accordance with Fig. 19.1 of these GPPs shall also exist beyond the end of the Contract for an indefinite period, and namely as long as an exemption in accordance with Fig. 19.2 of these GPPs is not proven.
Transfer of the Contract
In the event that PROVIDER intends to transfer the Contract with all rights and obligations to another party (hereby referred to as “NEW PROVIDER”), CP shall already be obliged to submit all necessary statements for such a transfer of the Contract, upon corresponding request from PROVIDER, to the NEW PROVIDER, if
PROVIDER is at the same time transferring the provision of the services to be hereby contractually provided;
the execution is a significant key area of the economic activity of the NEW PROVIDER;
the NEW PROVIDER is not significantly involved with any direct competitor of CP;
the NEW PROVIDER is based within the EU and guarantees that any processing of personal data from the contractual relationship will continue to be carried out within the EU.
CP will be notified of the transfer of the Contract immediately after its implementation by PROVIDER and the NEW PROVIDER by email, confirming the presence of the requirements in accordance with the above Fig. 20.1.
All legal provisions resulting from this Contract are subject to the law of the Federal Republic of Germany, with the exclusion of the UN sale of goods law (Convention on Contracts for the International Sale of Goods - CISG).
Unless expressly provided otherwise in these GPPs, all statements made within the framework of this or in connection with this contractual relationship must be submitted in writing, or in text form via email.
Should individual provisions of this Contract be ineffective or not feasible, the remainder of the Contract shall hereby remain unaffected. In this case, statutory provisions shall take the place of the ineffective or unfeasible provision.
The sole place of jurisdiction for all disputes resulting from the contractual relationship, including these GPPs, is Düsseldorf, Germany, provided that such a place of jurisdiction agreement is permissible.