1. Scope of application
1.1. These General Terms and Conditions (GTC) are an integral part of the contractual relationship between Digital Now Solutions GmbH (provider) and its customers, which governs the use of Digital Now Solutions GmbH software products and associated solutions and services. The law of the Federal Republic of Germany applies exclusively.
2. Definitions and subject matter of the contract
2.1. The subject matter of the contract results from these GTC and the agreements listed in the offer and the relevant service descriptions.
2.2. "Software"describes desktop applications, add-ins, browser extensions, mobile applications, websites or other media.
2.3. These GTC apply exclusively.Any terms and conditions of the customer that conflict with or deviate from these GTC shall not become part of the contract, even if the provider is aware of them, unless the provider has expressly agreed to their validity in writing.
2.4. The provider makes software available to automatically collect and process company data, public contact data and other customer-specific data
2.5. If customers use the software and software infrastructure provided (e.g. Lemlist) to make contact with customers or potential new customers, the provider is a vicarious agent and is always bound by the customer's instructions.
2.6. The Provider is authorized to amend and adapt these GTC during the term of the contract with effect for the future if this becomes necessary for a compelling reason, such as compelling operational reasons, changes to laws or case law, or if exclusively new services of the Provider (such as the expansion of the offer through the provision of additional services) are introduced. The provider shall send the customer the amended terms and conditions in text form prior to the planned entry into force and draw particular attention to the new regulations and the date of entry into force. At the same time, the provider shall grant the customer a reasonable period of at least four (4) weeks to declare whether it objects to the amended terms of use. If no objection is made within this period, which shall commence upon receipt of the notification in text form, the amended terms and conditions shall be deemed to have been agreed. The provider shall inform the customer separately of this legal consequence, i.e. the right of objection, the objection period and the significance of silence, at the beginning of the period.
3. Rights and obligations of the provider
3.1. The Provider reserves the right to change, expand or discontinue individual services, in particular if this is necessary to prevent misuse or if the Provider is obliged to do so by law, while safeguarding the legitimate interests of the Customer and subject to a notice period of three(3) weeks. If the contractual use of the contractual services by the customer is not only insignificantly impaired as a result, the customer is entitled to demand a price adjustment or to terminate the contract. The Provider may make improvements, extensions or adaptations of the contractual services to the state of the art at any time without observing a notice period, provided that the identity of the service is preserved.
3.2. The provider endeavors to keep technical faults/downtimes to a minimum. Should the availability of the software be limited, the provider will rectify this as quickly as possible.Digital Now will inform the customer in good time of any foreseeable faults or maintenance work on the software.
3.3. The provider is entitled to use aggregated analyses of customer data for the purpose of improving its own product. At no time may this data be used to identify individual persons.
4. Rights and obligations of the customer
4.1. Customers may not inappropriately and knowingly influence the infrastructure of the software or use it for illegal purposes. If there are any indications of this, the provider may immediately suspend the availability of the software or block the customer account.
4.2. The customer is solely responsible for compliance with laws, rules and regulations and guarantees theprovider not to violate data protection guidelines.
4.3. The customer shall ensure that no viruses or other malware are distributed via the service.
4.4. The customer must ensure that no third party can obtain access data and is responsible for any misuse.
4.5. The customer is authorized to use the software or the data from the use of the software for the duration of the contract.
5. Remuneration, term and terms of payment
5.1. The remuneration to be paid and the deadlines for any advance payments can be found in the respective offer. All prices are exclusive of statutory VAT. Travel costs, such as for traveling, accommodation, meals and expenses, are charged separately. Invoices must be paid within fifteen working days of receipt.
5.2. The term of the usage contract corresponds to the period defined in the order and is automatically extended by the same period under the same conditions unless the customer cancels the contract in text format least one month before the end of the contract term.
5.3. Various data processes and workflows of varyingcomplexity can be mapped automatically in the software and paid for using credits. We reserve the right to adjust the prices for our credits at any time with effect for future periods. We will inform you of price changes in good time in advance on our website or in another suitable manner. For credits already purchased, the prices valid at the time of purchase shall apply
6. Data protection
6.1. The Provider shall not acquire any rights to the data provided or stored by the Client in the course of using the services provided, including personal data of third parties. The Provider shall process personal data exclusively in accordance with the Client's instructions and within the scope of the contract. In the case of commissioned data processing, the client remains responsible under both contractual law and data protection law in accordance with the Federal Data Protection Act (GDPR).
6.2. The services made available by the Provider may only be used by the Customer within the framework of the applicable laws, in particular the applicable data protection and unfair competition laws. It is the Customer's responsibility to ensure that the legal requirements (e.g. consent in accordance with the GDPR and UWG) for a possible approach are met prior to any use of contacts that may have been identified via the Provider's services. The provider assumes no liability for the legality of the advertising use made by the customer of any data provided by the services. The customer shall ensure that it processes the data in accordance with the legal requirements.
6.3. The customer undertakes to indemnify the provider against all third-party claims, including fines and claims for damages, arising from the customer's unlawful use of the data obtained through the provider's services. This includes in particular claims in connection with unauthorized advertising to third parties. The indemnification obligation also includes the costs of any legal defense (including legal fees and court costs) incurred by the provider due to the unlawful use of the services by the customer.
6.4. The provider collects, processes and stores statistical data on the use of the platform for the purpose of expanding and further developing the product. We reserve the right to use anonymized and aggregated platform usage data for analysis and research purposes for the purpose of expanding and further developing the product. This data does not contain any personal information and cannot be used to identify individuals
7. Rights of use and ownership
7.1. The customer receives the non-exclusive, non-transferable right to use the services provided under the contract. All copyrights and property rights to the services provided and the associated materials shall remain with the Provider.
8. Liability
Finally, the provider is liable as follows:
8.1. The provider shall be liable without limitation for damages due to intentional or grossly negligent acts, culpable injury to life, limb and/or health, in the event of a breach of a guarantee expressly designated as a "guarantee", and in the event of mandatory statutory liability under the Product Liability Act.
8.2. In cases other than those described in Section 8.1, the liability of the provider for the slightly negligent breach of an essential contractual obligation, the fulfillment of which is necessary for the achievement of the purpose of the contract and on the fulfillment of which the customer may therefore regularly rely, is limited to the damages foreseeable and typical for the contract at the time of conclusion of the contract.
8.3. In all other cases, the provider is not liable for slight negligence.
8.4. The provider's strict liability for damages (§ 536 a BGB) for defects existing at the time of conclusion of the contract is excluded. Clauses 8.1 to 8.3 remain unaffected.
8.5. The customer is responsible for regularly backing up his data at appropriate intervals. In the event that the Provider is liable on the merits for a loss of data, this liability shall be limited to the amount that would be required to restore the data if such reasonable regular backups had been made.
8.6. The provider shall not be liable for data loss caused by technical failures, interrupted data transmissions or other problems arising in this context that are beyond the provider's control (e.g. faults on the transmission paths of telecommunications service providers or the Internet).
8.7. The above liability provisions of Clauses 8.1 to 8.6 also apply in favour of the provider's executive bodies, employees, representatives and/or vicarious agents.
9. Assurance and exemption
9.1. The customer warrants that it will comply with the applicable laws, in particular those of the UnfairCompetition Act (UWG) and data protection standards, in all communication measures with contacts mediated via the provider's services.
9.2. The customer shall indemnify the provider against all claims by third parties (including the costs of legal defense) that they assert against the provider due to a violation of their rights and/or a violation of applicable laws in connection with the customer's advertising communication measures. In this case, the customer undertakes to immediately provide all necessary information relevant to the defense in full and truthfully.
10. Force majeure
10.1. "Force majeure" is an event that is not foreseeable by either party. Force majeure in this sense includes in particular (i) fire, explosions or other accidents; (ii) storms, earthquakes, tornadoes, floods, volcanic eruptions or other natural disasters; (iii) war, threat of war, terrorism, insurrection or other unrest; (iv) epidemics, pandemics, quarantine restrictions or other restrictions imposed by public health measures; (v) strikes or other industrial action by the parties or their suppliers or their employees; or (vi) sanctions or embargoes.
10.2. If the performance of the contractual obligations is hindered by a force majeure event, the affected party shall be released from the obligation to fulfill the affected obligations for the duration of the force majeure event.
11. Confidentiality
11.1. Both parties undertake to keep secret all confidential information received in the context of the contract and to use it only for the fulfillment of the contract.
12. Final provisions
12.1. The place of fulfillment is the registered office of the provider.
12.2. The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the provisions of international private law.
12.3. The registered office of the provider is agreed as the exclusive place of jurisdiction for merchants, legal entities under public law and special funds under public law. The provider reserves the right to sue the customer at his general place of jurisdiction.
12.4. There are no ancillary provisions outside of this contract and its annexes. Any amendments, additions or the cancellation of these GTC and/or the contract must be made in writing; this also applies to the amendment, addition or cancellation of this clause12.4.
12.5. The provider is authorised to have individual or all of its service obligations performed with the help of third parties (e.g. by subcontractors).
12.6. Should individual provisions of these GTC be invalid or unenforceable, this shall not affect the validity of the remaining provisions.The invalid or unenforceable provision shall be replaced by the statutory provisions.