§ 1 Scope
1.1 For the business relationship between schubwerk GmbH (hereinafter referred to as “schubwerk”) in 65343 Eltville towards companies, service providers and freelancers (hereinafter referred to as “customers”), the following General Terms and Conditions of Business and Use for the schubwerk Software Platform (SaaS) in the version valid at the time of conclusion of the contract shall apply, insofar as no product- or service-specific conditions apply. In addition, the data protection declaration shall apply: https://schubwerk.de/en/privacy-policy/.
1.2 schubwerk’s offers are directed exclusively at companies or self-employed persons. The General Terms and Conditions therefore only apply to entrepreneurs within the meaning of § 14 BGB (German Civil Code). Entrepreneurs are here natural or legal persons or a partnership with legal capacity, which acts with conclusion of a legal transaction in exercise of its commercial or independent vocational activity.
1.4 Verbal ancillary agreements must be documented by a permanent data carrier, e.g. by e-mail. Changes of the conditions as well as the agreement of delivery dates or periods, which can be agreed bindingly or non-bindingly, require the confirmation by schubwerk.
§ 2 Services from schubwerk
2.1 The object of the service is the provision and access for a fee to the Software Services on the schubwerk platform as Software as a Service (SaaS) as described in more detail in the current product description under https://schubwerk.de/.
2.2 schubwerk offers the customer the possibility to track, manage and evaluate (online) marketing and business data from different systems by providing his software solution for a limited period of time.
2.3 The respective functional scope results from the designation of the service packages and the corresponding current product description under https://schubwerk.de/.
2.4 The data processed within the scope of the use of the schubwerk software originates from sources of third parties such as “Google”. schubwerk has no influence on their correctness, completeness or topicality and does not owe these.
2.5 The customer is responsible for the completeness, correctness, legality, up-to-dateness, quality and suitability of the data, content, parameters and information provided by him. schubwerk does not assume any responsibility for checking the parameters provided by the customer for completeness, correctness, legality, up-to-dateness, quality and suitability for a specific purpose or the contractually intended purpose.
2.6 schubwerk is entitled to make changes to the content or functionalities (e.g. through patches, updates or modifications) of the Services which are reasonable taking into account the interests of the customer. schubwerk is also entitled to have parts or all of its services provided by third parties, in particular subcontractors.
2.7 Customers can test the schubwerk software free of charge by selecting a test account 1 month after successful registration. Subsequently, the use of the services will be blocked for the customer, unless he concludes a paid subscription according to section 3.4. A test account has only limited functionalities.
2.8 schubwerk also offers services for companies in the area of tracking and marketing on the Internet. The aim is to increase customer contacts and leads for the customer. For marketing on the Internet, schubwerk uses various media, Internet portals and search engines, which are independently selected under the aspects of advertising effectiveness and profitability or are coordinated with the customer at his request. The position of the customer in the search engines and portals is variable and depends on the respective evaluation factors. Therefore schubwerk does not owe any concrete success regarding positions, number of visitors, page views, leads or customers.
2.9 schubwerk is entitled to engage third parties for the performance of the contractual services. schubwerk may transfer the contract or the rights and obligations arising from the contract to one or more third parties. In this case, there shall be no special right of termination.
§ 3 Registration and Conclusion of Contract
3.2 In the registration form, each customer must enter a valid e-mail address and create a password. By sending the completed registration form, the Customer creates a user account (hereinafter “Account”) and submits his offer to conclude the contract for the use of the Website. If schubwerk accepts this offer by sending a confirmation e-mail and the customer subsequently confirms his registration by selecting the hyperlink listed in the confirmation e-mail (double opt-in), a contract for the use of the software is concluded between the customer and schubwerk (hereinafter referred to as “user contract”).
3.3 If a test access is selected, the customer can test his account 1 month free of charge. After the test period has expired, the customer can only use the services within the framework of a contract subject to a fee (hereinafter referred to as “subscription”).
3.4 The legally binding conclusion of a contract to conclude a subscription takes place through registration on the website or acceptance of the written offer.
3.5 The conclusion of the contract by registration on the website is as follows:
(1) The presentation of the subscriptions on the website does not constitute a legally binding offer, but a non-binding invitation to submit an offer (invitatio ad offerendum).
(2) The contract can only be concluded using the form provided on the website. To conclude the subscription, the customer fills out the order form completely.
(3) The customer confirms his selection by clicking the buttons “Next” or “Continue”.
(4) The customer has the possibility to check and correct his data again.
(5) Before the binding sending of the offer, the customer can return to the subpage by pressing the “Back” key in the order form after checking his details, on which his details are recorded and correct input errors or cancel the order process by closing.
(6) The customer sends the order bindingly by clicking the button “Buy Now” or “Purchase Now”. The dispatch of the order represents an offer to conclude a subscription.
(7) The receipt of the offer will be confirmed immediately by schubwerk by means of an acknowledgement of receipt.
(8) The acceptance of the offer by schubwerk takes place by declaration of acceptance in text form or activation of the services for the customer.
3.6 The registration and conclusion of a subscription is only permitted to natural and legal persons with unlimited legal capacity and only in their own name and for their own account. Registration and conclusion of a contract for legal entities is only permitted to persons who act as legal representatives or other authorised persons of the respective legal entity or on its behalf and will. Customers must either have reached the age of 18 at the time of registration and conclusion of the contract or their legal representatives must have agreed to registration and conclusion of the contract.
3.7 Each customer may only register once. One account must be created per customer. An account is not transferable. There is no entitlement to the conclusion of a user contract or a subscription. schubwerk reserves the right to refuse registration and the conclusion of a subscription without giving reasons.
3.8 The data requested during registration and within the scope of the conclusion of a subscription must be provided completely and truthfully. If the data change subsequently, the customer is obliged to update the information immediately. At schubwerk’s request, the customer shall confirm the data.
3.9 In the case of individual services and agreements, schubwerk shall submit a written offer to the customer to conclude a contract for individual services of schubwerk. The offer requires a written declaration of acceptance by the customer. The contract between the customer and schubwerk is concluded upon receipt of the written declaration of acceptance from schubwerk.
§ 4 Prices and terms of payment
4.1 The prices and terms of payment result from the offer to conclude a contract.
4.2 All prices are exclusive of the statutory value added tax.
4.3 The payment owed by the customer is due in advance at the beginning of the booking period (monthly or annually).
4.4 The remuneration owed by the customer can only be paid using the payment methods supported by schubwerk. The payment methods supported by schubwerk are listed on the website. schubwerk reserves the right to exclude individual payment methods from selected customers if there is reason to fear a return debit or cancellation of the payment or insufficient coverage of the bank account to be debited.
4.5 In case of default of payment schubwerk is entitled to block the purchase of further services, in particular the access to the system and the database. In such a case, the contractually agreed payment claims of schubwerk shall remain unaffected. During the period of default, the client shall pay interest on the monetary debt in the amount of the statutory interest rate according to § 288 BGB (German Civil Code).
4.6 If the client is in default of payment, schubwerk is entitled, after the unsuccessful expiration of a period of at least two weeks, to terminate the contract extraordinarily.
4.7 In the event of termination pursuant to § 4 paragraph 6, the contractually agreed payment claims of schubwerk as well as claims for damages shall remain unaffected.
§ 5 Rights of use
5.1 schubwerk is the owner of all rights in connection with the software platform and the associated database and software. All copyrights, trademarks and other industrial property rights in the platform, the database, the database and the contents, data and other elements are the exclusive property of schubwerk.
5.2 The customer has the simple right, limited in time to the duration of the contract, with the exception of the United States of America and Canada locally not limited, not transferable, not sublicensable right, which cannot be sublicensed, to make individual data records visible on his screen exclusively by using the online search masks made available by schubwerk and to produce printouts thereof, as well as to store an analysis result for his own post-processing, as far as this is independently provided for by the software of schubwerk.
5.3 An automated query by scripts or the like is not permitted, except for the API provided and documented by schubwerk. Copyright notices or other proprietary rights notices on the software platform may not be changed.
5.4 The customer may dispose of the data obtained through the query within the company, but may not use it for commercial data exploitation or the provision of information to third parties. A passing on of the data obtained through the query to third parties is expressly prohibited.
5.5 The customer may not use the data obtained by query, either in whole or in part, or in extracts, to set up his own database in any form or for commercial data exploitation or the provision of information to third parties.
5.6 With the transmission of the content that has been uploaded and required for analysis by the Software Service, the customer grants schubwerk the right to use this content and data for the duration of this user contract for the types of use required for keeping it available in the database and for retrieval by the contractual partner, in particular to store, reproduce and keep ready the content.
5.7 The license ends when the customer deletes his customer content or his account.
5.8 The customer guarantees that he is the owner of the transferred rights and that it is possible for him to validly grant the license in clause 5.6. The Customer also guarantees that the Customer Content does not infringe any rights of third parties, in particular any trademark rights, competition rights, copyrights, property rights or personal rights.
5.9 schubwerk is entitled to name the customer as a reference customer within the framework of its Internet presence and in marketing materials.
§ 6 Data protection
6.1 schubwerk warrants to observe the provisions of the Federal Data Protection Act (BDSG) and other relevant legal provisions when collecting, processing and using personal data of the client. The client’s registration data are subject to the data protection regulations and are used as far as they are necessary for the establishment of the contract and for billing purposes. The registration data will only be passed on to third parties if it is necessary to safeguard the legitimate interests of a third party and after prior notification of the client.
6.2 The data obtained with the software can be analyzed and statistically processed by schubwerk. In particular, schubwerk is permitted to summarize these data in an industry-specific and cross-industry manner and to make them available to third parties in this aggregated and anonymized form. In order to improve the services pursuant to § 2, schubwerk is permitted to use the collected data internally. Non-aggregated data shall not be passed on.
§ 7 Availability
7.1. schubwerk guarantees 98% availability of services on an annual basis. Downtimes that are not due to a breach of duty by schubwerk, such as attacks on schubwerk systems by third parties, hardware failures through no fault of schubwerk or cases of force majeure, as well as related unscheduled maintenance work are not taken into account. Maintenance work, further development or malfunctions may restrict or temporarily interrupt the possibilities of use. This may also result in data loss under certain circumstances.
7.2 Scheduled maintenance work takes place regularly between 10 p.m. and 6 a.m. and is announced to the customer at least 3 days in advance by e-mail. Scheduled maintenance work will affect the availability of the services for a maximum of 10 hours in one calendar month.
7.3. schubwerk provides the services solely on the website with tracking platform. Errors or malfunctions outside schubwerk’s sphere of influence, such as the functionality of APIs and other third-party tools or the provision of the correct parameters by the customer, do not fall under schubwerk’s obligation to perform. The customer remains obliged to pay the corresponding remuneration in case of errors or malfunctions that are not within the sphere of schubwerk.
7.4. The customer is responsible for creating, maintaining, operating and, if necessary, updating a sufficiently dimensioned hardware and software environment for the use of the services. The customer can view the necessary prerequisites for the use of the services at any time in the FAQ on our website.
§ 8 Mutual rights and obligations
8.1 schubwerk undertakes to supply the customer with the access data required for the use of the platform on a data carrier or by electronic data transmission (e.g. e-mail) after conclusion of the contract. Passing on the access data to third parties or making copies for third parties outside the scope of this contract is not permitted.
8.2 The client is obliged to keep any passwords for the use of the services of schubwerk secret and to inform schubwerk immediately if there are indications that a password has been misused by third parties.
8.3 The customer is responsible for all activities carried out using his password. If the client is not responsible for the misuse of his password because there is no violation of the existing duties of care, the client is not liable. The client is at liberty to prove that he is not responsible for the misuse of his password.
8.4 If the customer becomes aware of the misuse of the platform, he is obliged to inform schubwerk immediately. In such cases, schubwerk is entitled to block access to the platform until further misuse no longer threatens in coordination with the client. The same shall apply if schubwerk becomes aware of misuse of the platform without the participation of the customer. In these cases schubwerk will inform the customer immediately.
8.5 The customer undertakes to make available to schubwerk all existing data required by schubwerk for the fulfilment of its performance obligations under this contract and transfers to schubwerk the non-exclusive right to use and store such data during the term of the contract only for the purpose of fulfilment of the contract.
8.6 The customer shall create the necessary conditions on his side for the use of the services of schubwerk, including network and Internet connections, telecommunications connections, hardware and software as well as sufficiently competent personnel.
8.7 The customer is obliged to examine all services immediately after receipt of the access data for completeness and in the case of the software platform for functionality and to inform schubwerk immediately of any defects that may occur.
8.8 After termination of the contractual relationship, the customer undertakes to delete all electronic copies of the contractual access data. Information and contents which are available in embodied form are to be handed over to schubwerk.
§ 9 Contract term and termination
9.1 The contract between the client and schubwerk GmbH is concluded by the acceptance of the customer’s application or by the first fulfilment action carried out by schubwerk GmbH. schubwerk GmbH reserves the right to refuse acceptance of the customer’s application without giving reasons.
9.2 Subject to the following sentence, the contract of use may be terminated by either party at any time with 14 days’ notice to the end of the month. If the Customer has concluded a subscription prior to the termination of the User Agreement, the termination shall not become effective until the subscription has been completed, cancelled or otherwise terminated. In the event of a termination, the account will be maintained for as long as is necessary for the processing of completed subscriptions.
9.3 The customer can choose between a monthly and an annual term within the scope of the conclusion of a subscription.
9.3.1 In the case of the monthly term (standard), the subscription begins with the conclusion of the subscription and is concluded for a period of one month. It will be extended by another month if it is not cancelled with 14 days’ notice to the end of the respective term.
9.3.2 In the case of the annual subscription period, the subscription begins with the conclusion of the subscription and is concluded for a period of 12 months. It is extended by a further 12 months if it is not cancelled with 30 days’ notice to the end of the respective term.
9.4 Notwithstanding the above provision, schubwerk may terminate the subscription without notice if the customer is in arrears with payment of the remuneration or a not inconsiderable part thereof for two consecutive months or for a period of more than two months.
9.5 The right to extraordinary termination for good cause remains unaffected.
9.5 An e-mail to email@example.com or any other written notification to schubwerk is sufficient for the declaration of termination. Alternatively, the termination can also be made via the customer’s account.
9.7 From the time of termination of the contract, schubwerk shall be entitled to irrevocably delete all data stored during the term of the contract. The data can be handed over to the client in a customary format against reimbursement of costs.
§ 10 Warranty and liability
10.1 Subject to the further provisions of this Clause 10, schubwerk shall only be liable if and to the extent that schubwerk, its legal representatives, executives, employees or other vicarious agents are guilty of intent or gross negligence. schubwerk shall be liable – unless otherwise specified – according to the statutory provisions.
10.2 Im Falle eines drohenden Prozesses wegen einer Schutzrechtsverletzung hat der Auftraggeber in voller Höhe des nachgewiesenen drohenden Schadens binnen 4 Wochen ab hinreichender Darlegung der rechtlichen und sachlichen Umstände durch schubwerk Sicherheit zu leisten.
10.3 In addition, the customer shall bear all court and out-of-court costs and expenses incurred in connection with a lawsuit for infringement of industrial property rights.
10.4 schubwerk shall only be liable for damages other than those resulting from injury to life, limb and health insofar as these are based on intentional or grossly negligent action or on culpable breach of an essential contractual obligation by schubwerk, the observance of which is of particular importance for achieving the purpose of the contract and on which the client can rely.
10.5 If schubwerk negligently violates an essential contractual obligation, the liability for damages to property is limited to the foreseeable, typically occurring damage.
10.6 The provisions of the Product Liability Act shall remain unaffected.
10.7 schubwerk is not liable for lost profit or other financial losses of the customer. Insofar as the contractual liability of schubwerk is excluded or limited, this shall also apply to the personal liability of employees, representatives and vicarious agents.
10.8 With the exception of claims arising from tort and in accordance with the Product Liability Act, claims for damages by the customer shall become statute-barred at the latest on expiry of one year from the end of the year in which the claim arose and the customer becomes aware of the circumstances giving rise to the claim or should have become aware of such circumstances without gross negligence.
10.9 A strict liability of schubwerk for damages for defects existing at the conclusion of the contract according to § 536a paragraph 1 BGB (German Civil Code) is excluded.
10.10 No liability is accepted for the correctness of the data and content provided or transmitted by third parties. In particular, schubwerk is not liable for delays caused by incomplete data transmission on the part of the client.
§ 11 Alterations
11.1 Amendments of the General Terms and Conditions can be agreed by offer of schubwerk and acceptance of the customer. The offer by schubwerk is made by notification of the changes in content in text form. If the customer does not object to schubwerk’s offer within 6 weeks of receipt of the notification of change, this shall constitute acceptance of the offer and the changes shall become effective, provided that schubwerk has expressly drawn the client’s attention to this consequence in the notification of change.
11.2 In all other cases, in particular if the customer objects to the offer in due time, the contract shall continue to run under the previous conditions.
11.3 Amendments to the General Terms and Conditions can only be agreed in accordance with the above clause 1 if the amendment does not affect any main performance obligations and the relationship between performance and consideration is not significantly shifted to the disadvantage of the Customer.
§ 12 Final provisions
12.1 With regard to all legal relationships arising from this agreement, the parties agree that the laws of the Federal Republic of Germany shall apply to the exclusion of German international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).
12.2 The place of jurisdiction for all disputes arising from this contract, including tortious claims, is Eltville.
12.4 If a provision of these General Terms and Conditions is invalid, the remaining provisions shall remain unaffected. The ineffective provision shall be deemed replaced by a provision that comes as close as possible to the meaning and purpose of the ineffective provision in a legally effective manner. The same applies to any loopholes.
State: January 2019