General Terms & Conditions (GTC)
1. Scope
1.1 These General Terms and Conditions apply to all agreements between GauVendi GmbH, Feuerwehrstrasse 10, 60435 Frankfurt (hereinafter referred to as "GauVendi") and the Client.
1.2. The Client can only be companies within the meaning of Section 14 of the German Civil Code (BGB). This is a natural or legal person or a partnership with legal rights which, when concluding a legal transaction, is acting in the exercise of its commercial or independent professional activity.
1.3. The General Terms and Conditions apply exclusively. Conflicting or supplementary terms and conditions of the Client shall not apply.
1.4. GauVendi is entitled to amend these Terms and Conditions insofar as the changes are reasonable for the Client. GauVendi will inform the Client of the intended changes by e-mail in good time. If no objection is made by the Client within 4 weeks of receipt of the notification, the changes to the GTC shall be deemed to have been accepted. GauVendi will inform you about the right of objection as well as the legal consequences of the expiry of the deadline in the notification.
2. Service description/scope of services
2.1. The object of the agreement is the use of the offered software via remote access via the Internet ("Software-as-a-Service") as well as the possibility of the storage of data by the Client on servers operated on behalf of GauVendi ("Hosting"). The Client's connection to the Internet is not the subject of the agreement but is the responsibility of the Client within the scope of the conditions of use. Individual extensions and adjustments to the functionality of the software must be agreed separately and are not the subject of the scope of services.
2.2. The quality and resilience of the software depends to a large part on the quality of the initial data. The Client is solely responsible for this, as he provides the initial data and integration of the data for the GauVendi Feature-Categories™.
2.3. GauVendi is entitled to offer new services or to extend the functionality of existing services during the term of the agreement. These Terms and Conditions also apply to the extensions. Insofar as GauVendi makes changes to the features in the services booked by the Client, GauVendi shall be entitled to adjust the prices appropriately at the beginning of the next term, provided that GauVendi has announced the price adjustment and the reasons for the price adjustment within a period of 30 days at the beginning of the next term to the Client.
2.4. The Software-as-a-Service System is generally accessible 24 hours a day, 7 days a week. This does not apply to restricted or impossible access due to non-functioning software or hardware or during maintenance.
2.5. GauVendi may commission sub-contractors to provide the service.
2.6 The original data remains in the possession of the Client. The data records created by GauVendi are made available to the Client on request in a common data format (e.g. CSV).
3. Terms of Payment
3.1. The amount of remuneration due for the services in the agreement is determined by the main agreement.
Payment for the provision for individual use of the software (onboarding) is due from the conclusion of the agreement; the fees for the subscription are payable from the go-live dateunless the date has been postponed by mutual agreement.
3.2. The Client’s paid subscription is due and payable either monthly or annually in advance. The Client's paid subscription is due either monthly or annually in advance and is automatically renewed for the specified agreement term. Unused fees for a month or year, even pro rata, will not be refunded.
3.3. If the Client is in default with two consecutive payments, GauVendi is entitled to block access to the Client's account and to discontinue the Services. If GauVendi incurs additional costs as a result of the Client's delay, GauVendi is entitled to demand compensation from the Client.
4. Term and termination
4.1 The term of the agreement is at minimum 12 months, unless otherwise specified in the signed main agreement.
4.2 The term of the agreement is based on the start of the subscription, which begins on the go-live date, unless otherwise agreed.
4.3. The agreement may be terminated with 60 days prior the ending term stated in the general agreement with the Client, otherwise the agreement will automatically be extended by twelve months.
4.4. Termination must be in writing. Alternatively, the electronic form is sufficient.
4.5. Either party may terminate this agreement by cause with immediate effect by delivering notice of the termination to the other party, if the other party fails to perform the agreed services, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and the failure, inaccuracy, or breach continues for a period of 60 Business Days' after the injured party delivers notice to the breaching party reasonably detailing the breach.
5. Liability
5.1. GauVendi shall only be liable for intent and gross negligence, as well as for injury to life, limb or health, as well as to the extent of a warranty provided by GauVendi.
5.2. GauVendi shall only be liable for slight negligence in the event of a breach of an essential agreement obligation (cardinal obligation), the fulfilment of which enables the proper execution of the agreement in the first place and on whose compliance the Client may regularly rely. In this case, GauVendi’s liability is limited in amount to the damage that is foreseeable and typical according to the type of transaction in question.
5.3. GauVendi is not liable further.
5.4. The above limitations of liability also apply to the personal liability of GauVendi employees, representatives and organs.
6. Rights of use & Intellectual Property Ownership
6.1. The GauVendi retail system software, its original content, features and functionality is legally protected. The copyright, patent rights, trademark rights and all other rights in the software as well as in other objects that GauVendi makes available to the Client in the context of the initiation and execution of the agreement are exclusively to GauVendi in relation to the agreement partners. To the extent that the rights are available to third parties, GauVendi has corresponding exploitation rights.
6.2. GauVendi grants the Client for the duration of the agreement a non-exclusive, non-transferable and non-sublicensable right to use the software specified in the agreement within the scope of the agreement stipulated scope. The use is done online through the interfaces provided by GauVendi.
6.3. Use of the Software beyond the permitted use in accordance with this Agreement is not permitted. In particular, the Client is not entitled to have the software used by third parties or to make it accessible to third parties, in particular the Client is not permitted to reproduce or sell the software or parts thereof.
6.4. GauVendi is entitled to block the Client's access at the Client's expense in the event of serious violations of these Terms of Use. Such a suspension does not release the Client from the obligation to pay the agreed monthly fee.
6.5. Intellectual Property means any and all of the following in any jurisdiction throughout the world, trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing, trade secrets and confidential know-how including the unique inventory management intelligence gathered.
6.6. The Client recognizes that the inventory structure and setup of the GauVendi Feature-Categories™ remains the intellectual property of GauVendi and the Client shall take all steps as practicable to ensure this will remain vested as such. The Client retains all ownership and intellectual property rights to its own data.
6.8. The Client is responsible for distributing access, passwords, logins, and permissions.
7. Confidentiality
7.1. The parties agree to maintain confidentiality of all confidential information.
7.2. Excluded from this obligation are such confidential information,
(a) which were demonstrably already known to the recipient at the time of conclusion of the agreement or subsequently become known by third parties, without violating a confidentiality agreement, legal regulations or official orders;
(b) which are publicly known at the time of conclusion of the agreement or are subsequently made public, unless this is due to a breach of this agreement.
(c) which must be disclosed on the basis of legal obligations or by order of a court or authority. Where permitted and possible, the recipient required to disclose will inform the other party in advance and give it the opportunity to take action against the disclosure.
7.3. The parties will only grant access to confidential information to adviser’s subject to professional secrecy or previously subject to the confidentiality obligations of this Agreement. Furthermore, the parties will disclose only to those employees the confidential information they need to know for the performance of this agreement and to oblige those employees to maintain confidentiality to the extent permitted by labour law for the period after their departure.
8. Data protection
8.1. The agreement parties comply with the relevant data protection regulations.
8.2. GauVendi acts as a processor within the meaning of Art. 28 GDPR. This is also referred to in the contractual agreement with GauVendi.
9. Final Provisions
9.1. This agreement shall be governed exclusively by German law to the exclusion of international uniform law.
9.2. This agreement shall be governed by the laws of the Federal Republic of Germany excluding the Convention on Contracts of the International Sale of Goods.
9.3. The agreement parties can only offset against claims that are legally established or undisputed.
9.4. Should individually provisions of this agreement be or become ineffective in whole or in part, the validity of the remaining provisions shall not be affected. The parties already agree in this case that the invalid provision shall be replaced by an effective provision which is as close as possible to the economic purpose of the invalid provision. The same applies to any gaps in the agreement.