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Last Updated: 31. May 2023

 

General Terms and Conditions for the Use of the GENDAS Software 

  1. Software provider
    The provider and contracting party for the use of the GENDAS software as a service (hereinafter: “SaaS”) is


    GENDAS GmbH (hereinafter referred to as “GENDAS”)
    Paul-Robeson-Str. 14
    10439 Berlin
    Represented by: Lars Heinemann
    Commercial register: HRB 247856 B
    Register court: Charlottenburg Local Court
    VAT ID. DE357949917
    Phone: +49 (0) 30 520 0158 0
    E-mail: info@gendas.com

    With the binding order of the SaaS via the GENDAS website or via individual communication channels, an agreement for use is concluded between GENDAS and the customer, to which these terms of use apply exclusively. Subsidiary agreements must be made in text form. The customer is solely responsible for the legally compliant use of the SaaS.

    These Terms of Use represent the conditions under which the SaaS is made available to the Customer and may be used. Use of the SaaS is only permitted in compliance with these Terms of Use and any ancillary agreements.

    Any general terms and conditions of business of the customer to the contrary – insofar as they are not regulated in this agreement and/or GENDAS has expressly agreed to them in writing – shall not apply.

    GENDAS is entitled to change the terms of use if there is a justified interest. A justified interest exists in particular in the case of new technical developments, the introduction of new services, an expansion of functions, changes in jurisdiction, the legal situation or market conditions. GENDAS will inform the customer of the respective change by e-mail or in writing. At the same time, the Customer is expressly informed that he/she may object to the change by e-mail or in writing within six weeks of receipt of the notification of the change. If the Customer objects within this period, the respective change will not become subject matter of the User Agreement. In this case, GENDAS has the right to terminate the user agreement without notice. Otherwise, the amended terms of use will become effective between the parties after the expiration of the aforementioned period.

  1. Subject matter of the contract – provision of SaaS

    For the duration of this Agreement, GENDAS shall provide the Customer with the option to use the SaaS in the respective current version via the Internet by means of access via a web browser and shall grant the Customer access and usage rights thereto for the agreed number of users.

    In principle, the SaaS enables the customer to systematically record and store user data and to communicate with the users. The concrete content and functionality of the SaaS is based on the service description valid at the time of provision for the service package selected by the customer. The service description is part of the agreement between GENDAS and the customer. An upgrade with costs is possible at any time. GENDAS is free to change its service portfolio as desired.

    GENDAS will take state of the art measures to protect the data stored by the customer. GENDAS has no access to the data stored by the Customer. The Customer is obligated to protect access to the SaaS by appropriate, state-of-the-art security measures.

    In order to enable the customer to use the SaaS, GENDAS may offer additional services beyond provisioning.

  1. Scope of the right of use and obligations of the customer

    A physical transfer of the GENDAS software to the customer does not take place.

    The use of the SaaS is limited to enabling the functionalities contained in the service description by the Customer and in particular does not include any further right to other use, processing, further processing, evaluation, decompilation, reconstruction by way of reverse engineering or other acquisition of the source or object code, redesign of the SaaS or complete or partial integration of the SaaS into other software, unless this is exceptionally permitted in individual cases due to mandatory statutory provisions or GENDAS and the Customer have reached a separate agreement to this effect.

    The customer is obligated to ensure that the SaaS are not used for purposes that violate applicable law, official orders, third-party rights or agreements with third parties.

    The access and usage authorization may not be transferred, ceded or sublicensed to third parties in whole or in part, for a fee or free of charge, without the consent of GENDAS. The use of the SaaS, trademarks and names, including the appearance of the services provided in the SaaS, outside the provisions of the Terms of Use is prohibited to the Customer.

  1. Service level

    GENDAS will generally respond to a customer’s support requests by telephone or in text form within five business days at the latest. The GENDAS email address for support requests is support@gendas.com. The usual business hours of GENDAS are weekdays, Monday to Friday 09:00 – 17:00.

    GENDAS undertakes to organize adjustments, changes and additions to the SaaS and the server infrastructure as well as measures serving to detect and remedy malfunctions in such a way that impairments of accessibility or interruptions are reduced to the necessary extent, if possible. GENDAS will inform the customers immediately about existing or upcoming maintenance work.

    The availability of the SaaS under this Agreement shall be 95.0% on a monthly average excluding maintenance work, but availability shall not be impaired or interrupted for more than two calendar days in succession. Interruptions and impairment of functionality within these parameters shall not be deemed defects in performance.

    Disruptions and failures for which GENDAS is not responsible, in particular impairments based on failures and/or malfunctions of technical systems and/or network components outside the area of responsibility of GENDAS, are not included in the determination of the above availability.

  1. Change and update the SaaS

    GENDAS may make changes to the usability as well as the look and feel and the content of the SaaS at any time and without prior notice, provided that this does not affect the contractually intended or – in the absence of a contractual agreement – usual use of the SaaS. In this way, GENDAS can ensure that an up-to-date and appealing version of the SaaS is available to the Customer at all times.

    This includes the modification of the content of the SaaS at any time in a manner that is reasonable for the customer, in particular in order to further develop and improve it. This applies to both technical and content-related further developments and functional enhancements

    The customer has no claim to the creation of new versions or to the inclusion of certain additional functionalities in the SaaS
    GENDAS reserves the right to downgrade, restrict, otherwise modify or discontinue content of the SaaS, provided that GENDAS informs the Customer of the features and timing of the change within a period of seven working days prior to the time of the change. In this case, the Customer has a special right of termination with immediate effect within 30 days of receipt of the change information.

  1. User fee, billing, payment terms
    The usage fee to be paid by the customer is based on the price for the selected service package of the SaaS at the time of provision. As a matter of principle, the price list applicable at the time shall be authoritative; this is part of this usage agreement.

    GENDAS will notify the customer of price adjustments in text form at least one month before they are scheduled to take effect. The customer has a special right of termination within the regular period of notice until the price adjustment comes into effect. If the customer does not terminate the contract before the price adjustment comes into effect, the price adjustment is deemed to be approved.

    The usage fee is due no later than 14 days after invoicing. All usage fees are subject to the applicable sales tax. The customer shall be in default after this date even without a separate reminder.

    Objections to invoices must be raised by the customer with GENDAS within a period of eight weeks after receipt of the invoice. After the expiry of the aforementioned period, the invoice shall be deemed to have been approved by the customer and it shall be incumbent on the customer to demonstrate and prove the unfoundedness of the claims of GENDAS.

    Offsetting by the customer with counterclaims of any kind whatsoever is excluded, unless the counterclaim put forward for offsetting is undisputed or has been legally established.

  1. Period of use, termination

    The usage agreement between GENDAS and the customer comes into effect upon acceptance of the binding order by the customer; it is concluded for an indefinite period of time.

    The user agreement may be terminated by either party with a notice period of one month to the end of the month, unless otherwise agreed. The right to terminate without notice for good cause remains unaffected. Notice of termination must be given in text form at . It can also be made via the function provided for this purpose in the user interface.

    After termination of the contract, the Customer will receive a copy of the data stored for his user account in the database upon written request within six weeks after request. After termination of the contract, GENDAS is entitled to irrevocably delete the data stored by the Customer if the Customer does not inform GENDAS where to send a copy of the data upon request in text form within six weeks after this request.

  1. Privacy

    The processing of personal data in the context of the use of the SaaS by the Customer shall be carried out on behalf of the Customer in accordance with a separate order processing agreement concluded between the Parties.

    Notwithstanding the foregoing, the Customer, as the responsible party within the meaning of Art. 4 No. 7 of the German Data Protection Regulation (DSGVO), is obligated to ensure that personal data entered via the SaaS is processed exclusively within the scope of the statutory provisions.

  1. Warranty

    GENDAS warrants that the SaaS will function as agreed during the term of the agreement between the parties and that the use by the Customer to the contractually intended extent at the time of provision in the Federal Republic of Germany will not be opposed by any third party rights. Any further warranty by GENDAS is excluded.

    If the Customer discovers a defect in the SaaS, he must notify GENDAS of this in writing without delay, at the latest within two weeks. If the Customer fails to notify GENDAS, the defect shall be deemed to have been approved. The Customer may only assert claims for defects if reported defects are reproducible or otherwise verifiable and insofar as the SaaS is used in accordance with the contract.

    The parties exclude the customer’s right of termination pursuant to Section 543 (2) sentence 1 no. 1 of the German Civil Code (BGB) due to non-granting of use, unless the non-granting is not only temporary.

    The parties exclude a strict liability of GENDAS for defects already existing at the time of the conclusion of the contract according to § 536a Abs. 1 Alt. 1 BGB (German Civil Code).

  1. Limitation of liability, indemnification

    GENDAS is liable without limitation in cases of intent, gross negligence and culpable injury to life, body or health. Notwithstanding the cases of unlimited liability, GENDAS is only liable for negligently caused damage to property and financial losses in the event of a breach of essential contractual obligations, i.e. such obligations whose fulfillment makes the proper execution of the agreement possible in the first place or whose breach jeopardizes the achievement of the purpose of the agreement and on whose compliance the other party may regularly rely (so-called cardinal obligations).

    The liability for negligently caused property damage and financial loss due to the violation of a cardinal obligation is limited to the amount of the damage foreseeable at the time of the conclusion of the contract and typical for this type of contract.

    The above limitations of liability also apply in favor of legal representatives, employees and vicarious agents of GENDAS

    The above limitations of liability shall not apply to liability under the Product Liability Act.

    GENDAS is not liable for legal violations by the contractual partner when using the SaaS.

    The customer is solely liable for the infringement of rights of any third parties by the customer. If a claim is made against GENDAS for infringement of third party rights, GENDAS shall notify the Customer immediately. The Customer shall indemnify GENDAS against such claims and reimburse GENDAS for all costs incurred as a result of the third party claim and shall compensate GENDAS for all damages incurred as a result, including any fines and/or penalties to be paid as well as reasonable costs for legal defense. As far as possible, the customer will assume the legal defense. This does not apply if the Customer is not responsible for the alleged infringement. Also not covered by the above indemnification obligation are claims which GENDAS acknowledges without the prior consent of the Customer.

  1. Force majeure

    In the event of force majeure and unforeseen circumstances beyond the control of GENDAS (e.g. natural disasters, fire or explosions, hereinafter: “Force majeure”), or in order to comply with a legal requirement, GENDAS may temporarily suspend the provision of services.

    GENDAS will notify the Client of a case of force majeure as far in advance as possible so that the Client can export its data and content from GENDAS’s systems.

    For the period of force majeure, the mutual contractual obligations are suspended. If the Client has paid in advance for the provision of the services, GENDAS will refund the remuneration paid for the period of force majeure.

  1. Final provisions

    The contractual language is German. If these Terms of Use are made available in multiple languages, the German version shall be binding in the event of discrepancies and/or contradictions between the German version and the other language versions.

    The contractual relationship and other agreements between the parties, in particular ancillary agreements, shall be governed exclusively by German law (excluding any references to other legal systems). The applicability of the provisions of the Convention on Contracts for the International Sale of Goods (UN Sales Convention) is excluded.

    The place of mutual performance of services is Berlin.

    For disputes arising from or in connection with the contractual relationship and/or in connection with other agreements between the parties, in particular ancillary agreements, the parties agree that Berlin shall be the exclusive place of jurisdiction if the contracting parties are merchants, legal entities under public law or special funds under public law.

    Should individual provisions of this agreement be or become invalid, this shall not affect the validity of the remaining provisions. The parties shall endeavor to agree on a valid provision in place of the invalid provision which comes as close as possible to what the parties intended to agree on in accordance with the originally intended purpose from an economic point of view in a fair manner.