General Terms & Conditions
for the GIN cloud and the INSTANTLI / Sidebar software
(As of 12/2017)
I. General provisions
1. Parties and products
1.1 The following contractual conditions of IQSER Technologie GmbH, Heinrich-Lanz-Str. 19-21, 68165 Mannheim (Germany) (hereinafter referred to as the „Provider“) apply to the provision free of charge of the INSTANTLI / SIDEBAR software (hereinafter referred to as „INSTANTLI“ or „SIDEBAR“) and of the GIN CLOUD made available by the Provider (hereinafter referred to as „GIN CLOUD“ or „GIN CLOUD Solution“).
1.2 The customer is the user of the website https://iqser.cloud (or another platform) through which the INSTANTLI / SIDEBAR software and/or the GIN CLOUD is offered (hereinafter referred to as the „Customer“). The Customer can download the INSTANTLI/SIDEBAR software and/or register for the use of GIN CLOUD through the website https://iqser.cloud (or another platform); on conclusion of the Contract, his use will be activated.
2.1 The following General Terms and Conditions in the version that is valid at the time the order is placed apply exclusively to the contractual relationship between the Provider and the Customer. The Customer’s alternative conditions shall not be accepted unless the Provider has expressly agreed to their application in writing. This also applies to special provisions for the INSTANTLI/SIDEBAR software and to those for the GIN CLOUD (hereinafter referred to as „contractual Software“).
2.2 The Provider has the right to modify these General Terms and Conditions at any time with an appropriate notice period. Upon publication of a notice to make modifications, the Customer has an extraordinary right of termination. The modifications are deemed to have been accepted if the Customer does not object to them in writing within 6 weeks. In the event of an objection, the Contract shall continue under the existing conditions.
2.3 Adaptation of the GIN CLOUD Solution and of INSTANTLI/SIDEBAR to individual customer requirements and advice on the technical requirements for the Customer to use them constitute services that are not included in the services to be provided under this Contract.
3. Components of the Contract
3.1 The components of the Contract for each service commissioned by the Customer are, in the following order of precedence:
- the Customer’s order;
- these General Terms and Conditions.
3.2 If there are contradictions between provisions in the contractual components, the order of precedence under 3.1 shall apply.
II. Provisions for INSTANTLI/SIDEBAR
1. Conclusion of Contract
1.1 The Customer can select the INSANTLI and/or SIDEBAR software from the product range offered by the Provider by clicking the respective icon. The selected software can then be downloaded by clicking the „Download App“ button.
1.2 The text of the Contract is made available for the Customer to download on the same page from which the software is downloaded.
The Contract is concluded in: German.
1.3 The Contract is concluded when the download is complete.
2. Item supplied and usage rights
2.1 The Provider shall consign to the Customer free of charge the INSTANTLI/SIDEBAR software described in more detail on the website, together with the associated documentation, and shall grant the Customer the usage rights to the INSTANTLI/SIDEBAR software described here under 2.3.
2.2 The Provider shall supply the Customer with any updates to the INSTANTLI/SIDEBAR software voluntarily and at its own discretion via the website https://iqser.cloud.
2.3 The Customer shall receive the non-exclusive, non-transferrable, non-sublicensable right to use the INSTANTLI/SIDEBAR software for the contractually agreed purpose, restricted geographically to the European Economic Area and Switzerland and unlimited in time.
2.4 The restrictions described under IV.2. also apply.
3. Delivery and delivery dates
3.1 The INSTANTLI/SIDEBAR software is delivered by the Provider making INSTANTLI/SIDEBAR available to the Customer for download.
3.2 The following restrictions apply: The Provider shall only supply Customers whose normal place of residence (delivery and billing address) is in the European Economic Area or Switzerland.
4. Liability for defects and other liability
4.1 As the Provider supplies the INSTANTLI/SIDEBAR software to the Customer free of charge, the Provider accepts liability for legal and material defects only if the Provider has fraudulently concealed such a defect. Beyond that, the Provider can only accept liability in cases of malicious intent, gross negligence, claims under the German Product Liability Act, warranty claims and claims for loss of life, physical injury or damage to health.
4.2 Otherwise the Provider’s liability for claims for damages and compensation are excluded, whatever their basis.
III. Provisions for the GIN CLOUD
1. Conclusion of Contract
1.1 The Customer may select GIN CLOUD product variants from the range offered by the Provider and initiate a two-week trial period by completing the registration form that opens when the „Try now“ button is pressed. Alternatively, the Customer may place an order directly in return for payment by selecting GIN CLOUD product variants from the range offered by the Provider and opening the registration form for ordering the GIN CLOUD Solution in return for payment using the „Order now“ button. The registration form is used simultaneously to set up a customer account, by means of which the Customer can log in once access has been provided.
1.2 By submitting the registration form, the Customer is issuing a binding application to order the selected product variants and conclude a Contract. The Customer may alter and view the details at any time before submitting the order.
1.3 If the two-week trial period is selected, the Provider shall then send the Customer an automated confirmation of receipt that lists the Customer’s order once again and includes the access details for signing in to the GIN CLOUD Solution.
1.4 If a lease of the GIN CLOUD Solution is taken out in return for payment, the Customer shall receive an automated order confirmation by email with the subject „Confirmation of receipt of your order with IQSER Technologie GmbH“, which includes a link to confirm the order. On activating the link, the Customer is taken to a website where he is able to select the relevant package (S, M, L) and pay by entering his payment details. After entering the payment details, the Customer shall receive an email order confirmation, and access to the GIN CLOUD is enabled.
1.5 The text of the Contract (consisting of the order, Terms and Conditions, and order confirmation) is then sent to the Customer by the Provider on a permanent data store (email). If the two-week trial period is selected, this is done on confirmation of receipt; if a lease is taken out in return for payment, it is done with the order confirmation.
1.6 The Customer may print out the text of the Contract. The text of the Contract is stored in accordance with data protection. The Contract is concluded in: German.
2. Operating the GIN CLOUD
2.1 The Provider undertakes to operate the GIN CLOUD specified in detail on placement of the order and make it available for the Customer to use, along with the associated documentation. The Provider shall grant the Customer the non-exclusive usage rights required for this in accordance with 3 below.
2.2 The performance and quality specifications for the GIN CLOUD Solution also apply. As a matter of principle, the performance and quality specifications for the GIN CLOUD Solution do not constitute any guarantee.
2.3 The GIN CLOUD is operated in the European Union. Relocation of the GIN CLOUD to a different place within the European Union and/or operation of the GIN CLOUD by a third party is permitted, provided that the Provider ensures that the data protection provisions applicable to processing the data are observed. The Provider shall also ensure that the relevant provisions on data security of the member state of the European Union in which the GIN CLOUD is operated are observed. The Customer shall receive notification of relocation of the GIN CLOUD to a different place and/or operation of the GIN CLOUD by a third party.
2.4 Use of the GIN CLOUD requires an Internet connection, a compatible browser, and a compatible operating system. The Customer is responsible for providing the Internet connection, the browser, and the operating system. The Customer shall also ensure that these correspond to the versions specified by the Provider.
3. Usage rights
3.1 The Customer shall receive the non-exclusive, non-transferrable right to use the GIN CLOUD Solution for the contractually agreed purpose, restricted geographically to the European Economic Area and Switzerland, limited in time to the term specified in the order and in these General Terms and Conditions, and sub-licensable only in accordance with the provisions of 3.3.
3.2 The Customer shall be allocated his customer account on registration. The names of several users (hereinafter referred to as „Named Users“) may be given and set up by the administrator for each customer account. The number of Named Users depends on the GN CLOUD Solution selected.
3.3 The GIN CLOUD Solution may be used only by the Customer, by the Customer’s own employees registered for the GIN CLOUD Solution, third parties who are appointed by the Customer to carry out data processing or employees of affiliated companies pursuant to Sections 15 et seq. of the German Companies Act (AktG). The Customer may set up freelance employees to use the GIN CLOUD in this sense.
3.4 When the Contract comes to an end, the Customer shall return to the Provider or destroy all product materials, in particular the documentation and any training documents, including any copies or print-outs made.
3.5 The Customer is obliged to notify the Provider immediately and in writing of any change that affects his usage authorization or remuneration.
3.6 The restrictions described under IV.2. also apply.
4. Use by Named Users
4.1 Use of the GIN CLOUD Solution is permitted only for Named Users and only for the number of users that corresponds to the number of licenses purchased by the Customer. The users must be authenticated by the administrator in the Customer’s system as Named Users by specifying their first name, surname, and email address. The Provider is entitled to verify compliance with the maximum license number by means of system measurement.
4.2 The Provider is entitled to install a license key on the server for the Customer, the intention of which is to ensure that access to the GIN CLOUD Solution is only possible for users who have been authenticated successfully. Installation of the license key does not absolve the Customer from his obligation to ensure that only the permitted number of users have access to the GIN CLOUD Solution.
4.3 If, in place of a previously authenticated Named User, the Customer wishes to grant use of the GIN CLOUD Solution to an employee other than one named when the Contract started (hereinafter referred to as a „Change of User“), the usage right of the originally authorized Named User shall expire completely. The Customer undertakes to delete the previous Named User or their access rights from the system before the new Named User is set up in the system.
5. Delivery and delivery dates
5.1 The GIN CLOUD Solution is delivered by the Provider making the access details for the GIN CLOUD Solution available to the Customer.
5.2 Delivery times specified by the Provider are calculated from the time of receipt of the confirmation.
5.3 If the product described in the order by the Customer is unavailable only temporarily, the Provider shall notify the Customer of this immediately. In the event of a delay in delivery of more than two weeks, the Customer has the right to withdraw from the Contract. The Provider is also entitled to withdraw from the Contract in this case. It shall then immediately reimburse any payments already made by the Customer.
5.4 The following restrictions apply: The Provider shall consign the GIN CLOUD Solution only to Customers whose normal place of residence (billing and delivery address) is in Germany.
6. Obligations of the Customer
6.1 The Customer is obliged to keep his access details secret and to select an appropriately secure password that prevents misuse by third parties. The Customer shall accept and support measures on the part of the Provider to improve and guarantee password security (e.g. rejection of passwords, regular reallocation of passwords, etc.).
6.2 The Customer undertakes to ensure that the transmission of data to the GIN CLOUD is lawful, does not breach applicable laws, and does not infringe the rights of third parties. In particular, the Customer undertakes vis-a-vis the Provider to ensure that the content transferred does not breach provisions of criminal law, copyright, competition law, youth protection law, trademark law and other commercial proprietary rights, data protection law, and third-party personal rights. The Customer shall obtain any consent and/or usage rights from third parties.
7. System measurement
7.1 If the Customer is a merchant, a legal person under public law or a special fund under public law, the Provider is entitled to carry out a system measurement once per calendar year based on the licenses included in the order to ascertain whether the Customer is remaining within the framework of purchased licenses. The Customer is obliged to give the Provider access to the system for this purpose.
7.2 If, in the course of the system measurement, it emerges that the Customer is exceeding the licenses purchased in breach of the Contract, e.g. by employees other than the users for whom the licenses were purchased having access to the GIN CLOUD Solution, he shall relicense the GIN CLOUD Solution in accordance with the provisions of these Terms and Conditions. In the case of relicensing, the license prices applicable at the time of the system measurement apply to the GIN CLOUD Solution. If it emerges in the course of the system measurement that the Customer is using the licenses in accordance with the Contract, the Provider shall bear the costs for the system measurement.
8. Maintenance of the GIN CLOUD Solution
8.1 The Provider undertakes to service and maintain the GIN CLOUD Solution. Servicing and maintenance includes, in particular, the provision of any new versions and rectification of faults. Rectification of faults includes quarantining the cause of the fault, diagnosing the fault, possibly temporary restoration of operational readiness of the GIN CLOUD Solution by a temporary workaround of the fault and final repair of the fault. Faults in this sense are, in particular, the provision of incorrect results, uncontrolled interruption or any other behavior of the GIN CLOUD Solution that is objectively not in accordance with its proper functioning.
8.2 The Provider shall coordinate any work required for servicing and maintenance which results in the GIN CLOUD Solution being unavailable for use in advance with the Customer in good time.
8.3 The Provider shall offer assistance with questions and problems that arise in the course of use of the GIN CLOUD Solution, answer the Customer’s questions, and indicate options for solutions and repairs. The associated consultancy work that is not the result of faults in the GIN CLOUD Solution and therefore does not relate to rectification of faults in the GIN CLOUD Solution itself shall be paid for separately by the Customer in accordance with the Provider’s price list.
9. Liability for material defects
9.1 The Provider undertakes to ensure that the GIN CLOUD Solution supplied corresponds with the requirements agreed in the order and documentation and does not have faults that makes it unsuitable or significantly impairs it. Defects that impair the value or the suitability of the results in a minor way only, in particular those that can be rectified by the Customer himself quickly and with little effort, shall not be considered.
9.2 The Customer may only pursue claims for defects if he notifies the Provider of them in writing and in detail as soon as they are discovered („Notification of Defect“). The Notification of Defect shall include a specific description of the defect.
9.3 The Provider shall deal with properly reported defects within an appropriate period by repairing them or providing a replacement (hereinafter referred to together as
„Supplementary Performance“) at its discretion.
9.4 Strict liability for damages resulting from defects that were already present on conclusion of the Contract, pursuant to Section 536a (1) of the German Civil Code (BGB), is excluded.
10. Liability for legal defects
10.1 The Provider undertakes to ensure that no rights exist in relation to the GIN CLOUD Solution and its documentation which restrict or exclude its use in accordance with the Contract. To this extent, 7 applies accordingly.
10.2 If third parties assert such rights, the Customer shall inform the Provider of this immediately in writing and in detail. The Customer shall grant the Provider all authorizations that may be required to mount a defense against the third-party rights asserted at the cost of the Provider and shall grant the Provider the full authority required to do so.
10.3 The Customer may not accept claims by third parties without the written consent of the Provider. He is only entitled to take over the negotiations or the legal proceedings if the Provider is unable to settle the matter within a reasonable period or the Provider has given its written consent to this.
10.4 9.4 applies accordingly to legal defects.
11.1 Claims by the Customer for compensation are excluded. Excepted from this are claims for compensation by the Customer resulting from loss of life, physical injury or damage to health or from breach of significant contractual obligations (cardinal obligations) and liability for other damages that are the result of intentional of grossly negligent breach of obligation by the Provider, its legal representatives or vicarious agents. Significant contractual obligations (cardinal obligations) are those the fulfillment of which is required to achieve the objective of the Contract and on compliance with which the contracting partner may normally rely.
11.2 In the event of the breach of significant contractual obligations, the Provider shall accept liability only for foreseeable damage typical of this type of contract if it has come about as a result of minor negligence, unless the Customer’s compensation claim is based on loss of life, physical injury or damage to health.
11.3 The restrictions of paragraphs 1 and 2 also apply in favor of the legal representatives and vicarious agents of the Provider if claims are made directly against them.
11.4 Liability for damages resulting from loss of data which is demonstrably the fault of the Provider shall, in accordance with Section 254 BGB, be limited to the amount that would have been prevented with proper data backup.
11.5 Liability in accordance with the provisions of the Product Liability Act remains unaffected by 11.
12. Services offered free of charge
If the services offered to the Customer by the Provider are delivered free of charge (e.g. if a trial period is selected), the limitations to the provision of the service are such that it is performed without warranty and without a right to customer service and provision of the service may be stopped by the Provider at any time, the account blocked, and the data deleted on termination of the Contract. Liability for minor negligence is excluded in this case, notwithstanding 11.
13. Term of the Contract and termination
13.1 The Contract shall commence on transfer of the access data. The Contract has the minimum term specified in the order of one month or one year („Term“). If a trial period has been selected, access is blocked automatically on expiry of the trial period.
13.2 At the end of the term, the Contract shall be extended automatically by the term agreed in the order, unless the contract is terminated with a notice period of 2 weeks before the end of the term.
13.2.1 If a term of one month is selected when the order is placed, the Contract may be terminated every month by the Customer with a notice period of 2 weeks before the end of the respective month of the Contract.
13.2.2 If a term of one month is selected when the order is placed, the Contract may be terminated every month by the Customer with a notice period of 2 weeks before the end of the respective month of the Contract.
13.3 The right to termination without notice for cause remains unaffected by the above provisions.
13.4 Terminations must take written form, which includes email.
13.5 Payments already made in the past shall not be reimbursed in the event of termination. On effective termination, the Provider is entitled to close the customer account and delete all of the data from the customer account. In the first instance, the Provider shall only block access to all data in the customer account for a period of 90 days from its closure, so that it can be reactivated on behalf of the Customer if necessary. When this period has elapsed, all data (that is not required for accounting purposes or for Contract processing) shall be deleted permanently. The Customer may demand immediate erasure of all data.
14. Remuneration and payment conditions
14.1 The price given on placement of the order is binding.
14.2 All prices specified on the Provider’s website are understood to be inclusive of Value Added Tax at the statutory rate and other components of the price.
14.3 Payment of the remuneration is due immediately on conclusion of the Contract. This does not apply if the trial period is selected.
14.4 If the Contract is extended, the amount shall be debited automatically from the credit card specified for the customer account on placement of the order, once the notice period has passed.
14.5 If the due date for payment is determined by the calendar, the Customer shall be in default as soon as the deadline is missed.
14.6 The Customer has the right to offset or a right of retention only in the case of legally established or uncontested counterclaims.
14.7 The Customer shall notify the Provider immediately of changes to his address, name, legal form, and/or bank details.
14.8 The Customer may make the payment by credit card.
During a period of default of payment by the Customer, the Provider is entitled to refuse to provide the service in whole or in part. In this case, the Provider may, in particular, block online access to the application. The Customer is still obliged to make the payment in this case. The Provider reserves the right to pursue other claims for default of payment.
III. Common provisions
1. General obligations of the Customer
1.1 The Customer shall take measures on a permanent basis to ensure that the INSTANTLI/SIDEBAR software is not made available to third parties without the Provider’s consent. For this purpose, the Customer shall consistently draw the attention of his employees to the need to comply with this contractual condition and with copyright. In particular, the Customer shall require his employees not to make unauthorized copies of the software and/or the documentation.
1.2 If a third party or an employee of the Customer breaches the Provider’s copyright, the Customer is obliged to collaborate to the best of his ability with clarification of the breach of copyright, in particular by making the Provider aware of the infringements without delay.
2. Restrictions on use
2.1 The Customer accepts that all existing rights to the contractual Software, including all intellectual property rights such as copyright, trademark rights, patents and all other proprietary rights are granted exclusively and without restriction to the Provider or to third-party providers whom the Provider has appointed to provide the services in relation to the contractual Software. The user is not permitted to duplicate, modify, decompile, create edited versions of, reverse engineer, disassemble or translate the contractual Software or parts thereof, or attempt to convert it into source code in any other way. This applies, however, only insofar as such an action is not expressly permitted under Sections 69d and 69e of the German Copyright Act.
2.2 The Customer may neither remove nor bypass any existing copy protection or other similar protective routines.
2.3 The Customer is not authorized to remove or change names, trademarks, serial numbers or other labels used for identification or other notices referring to proprietary rights. He shall include and reproduce all labels and notices on all copies of the contractual Software or software associated with it in the same form as on the original.
2.4 The Customer may use the contractual Software only for his own purposes and for the purposes of affiliated companies within the meaning of Sections 15 et seq. AktG. Data processing for third parties is not permitted. The Customer is not permitted to sell, give or lease the contractual Software to third parties or to grant sublicenses to it.
2.5 The product-specific license provisions and the provisions of section
2 here apply to the usage rights to the new versions, updates, upgrades and patches (hereinafter referred to as „New Versions“) supplied or used under this Contract.
2.6 Any use of the contractual Software that goes beyond the regulations of this section 2 is not permitted without the prior consent by the Provider, even if it is technically possible.
3.1 The Provider and the Customer undertake to keep secret all information and documentation made available in connection with the contractual relationship that is marked as confidential or the circumstances surrounding which make it clearly identifiable as business or operating secrets and not to record, pass on or utilize it unless required to do so to achieve the purpose of the Contract.
3.2 The Provider and the Customer shall ensure by means of suitable contractual agreements with the employees and/or contractors who work for them that they also refrain from utilizing or transferring such business and operating secrets or recording them without authorization.
3.3 These obligations under 1.1 and 1.2 do not apply to information that is already generally known and/or becomes known after conclusion of this Contract without breaching any confidentiality obligation.
4. Information about data processing
4.1 The Provider shall collect the Customer’s data in the context of processing of Contracts. It shall, in particular, observe the regulations of the German Federal Data Protection Act, the EU Data Protection Regulation, and the German Telemedia Act. The Provider shall collect, process, and use the Customer’s personal and usage data without the Customer’s consent only to the extent required to process the Contract and use and bill for telemedia.
4.2 The Customer shall take note of the fact that the Provider saves and automatically processes the personal data transferred in the context of the contractual relationship to process the Contract using IT.
4.3 The Provider shall not use the Customer’s data for purposes of advertising, market or opinion research without the consent of the Customer.
4.4 The „Agreement on Order (Data) Processing“ that is made available on the website under „Data Protection“ applies to any other personal data that is collected, saved, and/or processed by means of the GIN CLOUD Solution via third parties. The Customer may require the Provider to return a copy of the Agreement on Order (Data) Processing, two copies of which the Customer printed out, signed and sent to the Provider.
4.5 The Customer shall indemnify the Provider against any third-party claims regarding data provided by the Customer.
5. Concluding provisions
5.1 All publications, e.g. in the press, on the radio, television or Internet, by the Customer or the Provider or their employees, including publications for advertising purposes, must be agreed by the Customer and the Provider before publication. This does not apply to publications that are required of the parties on the basis of legal provisions or official instructions. The Provider is, however, entitled to name the Customer in a list of references.
5.2 The legal relationship between the parties is governed by the law of the Federal Republic of Germany, with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 04.11.1980.
5.3 If the Customer is a consumer, the statutory regulations on the restriction of the choice of law and the applicability of mandatory regulations, in particular those of the state in which the Customer has his normal place of residence as a consumer, remain unaffected. The preceding provision does not apply, however, to Contracts for the provision of services if the services due to the consumer have to be carried out exclusively in a state other than that in which the consumer has his normal place of residence.
5.4 If the Customer is a merchant, a legal person under public law or a special fund under public law, the place of jurisdiction for all disputes arising from the contractual relationships between the Customer and the Provider is the Provider’s registered office.
5.5 Should a provision of the Contract and/or of these General Terms and Conditions be or become invalid, the validity of the remaining provisions remains unaffected. In such a case, the parties are obliged to collaborate in drafting provisions by means of which the economic outcome of the invalid provision is achieved as closely as possible in a legally effective way. The preceding applies accordingly to closing any contractual loopholes.
Alternative resolution of disputes pursuant to Art. 14 (1) ODR Directive and Section 36 of the German Consumer Dispute Resolution Act (VSBG):
The European Commission provides a platform for online dispute resolution (ODR platform), which can be accessed at www.ec.europa.eu/consumers/odr. We are neither obliged nor willing to participate in the dispute resolution procedure.
The European Commission provides a platform for online dispute resolution (OS) which is accessible at http://ec.europa.eu/consumers/odr/. We are not obliged nor willing to participate in dispute settlement proceedings before a consumer arbitration board.