General terms and condition
Section I - General terms and conditions with customers who are not consumers pursuant to § 13 BGB (German Civil Code)
1 Scope, form
1.1 These General Terms and Conditions (hereinafter referred to as "GTC") shall apply to all business relationships between Empion GmbH, c/o Smart Host GmbH, Am Kupfergraben 6a, 10117 Berlin (hereinafter referred to as "Empion") and its customers (Customer and Empion hereinafter each individually also a "Party" and jointly the "Parties"). Section I of these GTC shall only apply if the Customer is an enterprise (§ 14 BGB), a legal entity under public law or a special fund under public law.
1.2 These GTC apply in particular to contracts for the temporary provision of standard software from Empion to the customer.
1.3 These GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that Empion has expressly agreed to their validity in writing or text form (e.g. letter or e-mail). This consent requirement shall apply in any case, e.g. even if Empion unconditionally provides the contractual services to the customer in knowledge of the customer's general terms and conditions.
1.4 Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these GTC. For the content of such agreements, subject to proof to the contrary, a contract or the confirmation of Empion in writing or text form shall be authoritative.
1.5 References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
2 Conclusion of contract
Empion shall send the customer an order form, which contains the essential contractual conditions (hereinafter referred to as "order form"), however, due to the lack of a legally binding will on the part of Empion, it does not yet represent a binding offer on the part of Empion (invitatio ad offerendum). The customer may then return the signed order form and hereby submit an offer. The contract shall only be concluded through Empion's confirmation of the conclusion of the contract, in particular through a countersigned return of the order form (hereinafter "main contract").
3 Subject matter of the contract, services
3.1 Empion is a provider of a recruiting solution for companies and potential employees (hereinafter "Service") . The object of the main contract is the provision of the Service for the use of the functionalities listed in the service description. Empion makes the Service available for use by the customer as Software-as-a-Service via the Internet. The customer uses the service via its customer account.
3.2 Empion shall initially set up the service for the customer in the course of an onboarding process. Unless otherwise agreed, this shall be done by remote maintenance.
3.3 During the term of the main contract , the service also includes all updates and other version changes within the contractual product in accordance with the provision under 4.4 of this Section I.
3.4 Empion also offers the customer - insofar as this is agreed in the main contract - assistance with technical problems and the optimal use of the service (support).
3.5 Empion reserves the right to continuously develop the Service and to expand its scope of functions or to adjust or restrict it to a reasonable extent.
4 Availability and maintenance
4.1 The service is available to the customer on average 99% per calendar year (hereinafter "availability time"), provided that the service is used within the framework as agreed in the main contract. The availability time does not include failures caused by
4.1.1 announced maintenance after 4.3;
4.1.2 unforeseeable, urgent maintenance work, e.g. to eliminate security gaps;
4.1.3 force majeure or other events beyond Empion's control which could not have been foreseen and prevented by Empion, in particular war or acts of war, acts of terrorism, cyber attacks, strikes, lawful lockouts, special weather conditions, power failures, traffic interruptions, fire damage, epidemics and pandemics (in particular COVID-19), changes in the law and official orders as well as operational disruptions or supply difficulties, insofar as they are not the fault of Empion;
4.1.4 Third parties who are not vicarious agents of Empion;
4.1.5 the customer or the software or hardware used by him or the Internet connection.
4.2 The availability is calculated according to the following formula:
(Maximum availability - Downtime) / (Maximum availability × 100)
4.3 Empion shall be entitled to carry out regular maintenance work, but shall try to keep the interruptions to a minimum. Empion shall inform the customer at the latest one day prior to the start of the work. In urgent cases, for example to eliminate security vulnerabilities, Empion may shorten the notice period or, if not otherwise possible, start the maintenance work without prior notice. If a prior announcement is not possible, the customer will be informed after the start of the work as soon as the situation that led to the immediate start of maintenance work allows it.
4.4 Empion is entitled, but not obligated, to perform updates of the Service within the scope of the maintenance work. Empion shall be entitled to adapt and change the performance spectrum of the Service to technical progress, provided that the agreed functionalities are not significantly impaired. Empion does not have to pay attention to a possible downward compatibility with software of third parties that does not correspond to the respective current status and/or to a possible interoperability with software of third parties. In this regard, Empion does not assume any warranty or other type of assurance. The customer shall bear any costs that arise in order to (re)establish the interoperability of the Empion Service with third party software. Something else applies only if this interoperability was expressly agreed upon as a condition in the main contract. Warranty claims remain unaffected.
4.5 The customer shall report any malfunctions not caused by maintenance work to without delay and shall ensure that the following information is provided:
4.5.1 Description, date and time of the incident,
4.5.2 functionality involved,
4.5.3 preliminary priority ranking ,
4.5.4 Actions already taken by the customer to resolve the incident.
4.6 Upon request, the customer shall provide any further assistance and information necessary to remedy the malfunction.
4.7 Insofar as the customer has reported a disruption in accordance with 4.5, the following response times shall apply, which Empion may determine at its reasonable discretion (§ 315 BGB):
4.8 If a reasonable workaround is available or provided by Empion, or another temporary fix, the failure is considered to be a Priority Level 4 failure.
4.9 Within the applicable response times, Empion will begin to eliminate the fault. Times outside the Service Times shall not be considered as Response Times.
4.10 Empion is not obligated to eliminate the disruption within the response times, but must make efforts to eliminate the disruption within a reasonable period of time and will inform the customer accordingly within a reasonable period of time.
4.11 No maintenance obligations exist with regard to third-party software.
5 Subcontractor
Empion shall be entitled to use subcontractors for the fulfilment of the contract .
6 Rights of use of the customers
6.1 Empion grants the customer a worldwide, non-exclusive, non-transferable right, limited to the term of the contract, to use the service for its own purposes, i.e. by its own employees, in accordance with the contract and the intended use. The right of use is limited to the cloud-based use of the service on the hardware intended for this purpose in the web browser by Empion.
6.2 The customer shall comply with the agreed scope of the license. If he exceeds this scope, Empion shall be entitled to demand an additional reasonable remuneration. In addition, Empion reserves the right to assert claims for damages in this case. Any additional remuneration paid shall be credited against the asserted claims for damages.
6.3 The Customer acknowledges that the exclusive rights to the Service and all included technologies and provided documentation are vested in Empion. Nothing in this Agreement shall be construed as conferring any rights in the Service or any part thereof to the Customer. All rights in the Service not expressly granted to the Customer in this Agreement are reserved by Empion.
6.4 The Customer may not use the Service for purposes other than those specified in the Agreement and shall protect the Service from unauthorized access by third parties. Without limiting the generality of the foregoing, the Customer is in particular not permitted to (i) use the Service or parts thereof for purposes other than the intended and contractual use, (ii) offer or distribute to third parties, sell, resell, lease, rent, loan or otherwise transfer, sublicense or assign rights to the Service or parts thereof without Empion's prior written consent, (iii) disclose or make available the Service or any part thereof to any third party or permit any person other than Customer's employees to use it in any way; (iv) modify, amend, alter or adapt the Service; (v) reverse engineer, decompile, translate, disassemble the Service or any part thereof or disassemble any data formats forming part of the Service and/or otherwise attempt to obtain the source code or any part thereof (except as permitted under 6.5); (vi) make copies of the Service or any part thereof; (vii) use the Service to develop a competing product or service; (viii) disable any license management system or security mechanism provided with the Service, (ix) access or use the Service to provide data processing or batch processing services to others; or (x) remove, alter or obscure any proprietary or copyright notices, trademarks or other marks of Empion or any third party rights holder.
6.5 The customer's statutory rights pursuant to §69d (2) and (3) and §69e Copyright Act shall remain unaffected, provided, however, that (i) a decompilation pursuant to §69e Copyright Act may only take place upon prior written request to Empion in which the customer requests the required information and Empion does not provide the required information within two weeks, and (ii) the parties enter into an appropriate confidentiality agreement that ensures the protection of the service and the source code from access by third parties.
7 Customer content
7.1 Empion enables the Customer to process its own data (hereinafter "Customer Content") within the scope of the use of the Service. The customer grants Empion a worldwide, non-exclusive right, limited to the term of the contract, to use the Customer Content within the scope of the Service in order to provide the contractual services. This includes in particular the right to reproduce the Customer Content and to make it publicly accessible within the framework of the Service for the users intended by the customer. Empion shall be entitled to transfer these rights to third parties, insofar as this is necessary for the provision of the Service, in particular to host providers.
7.2 Via the Service, it is possible to have analyses performed on the general corporate culture of the Customer as well as its employees ("Culture Analysis"). Unless otherwise expressly agreed , Empion may present the summarized results of the cultural analysis on a public company profile of the customer.
7.3 Customer grants Empion the right to use the Customer Content and Culture Analysis in accordance with 11.4 of this Section for analysis, calibration and benchmarking purposes to continuously optimize the Service for all Customers.
7.4 The customer grants Empion the right to include the customer's logo on Empion's website for advertising purposes and to create a public profile within the Service for the customer.[BMT1]
7.5 The Customer shall ensure that the Customer Content does not violate or impair any legal provisions and/or rights of third parties, in particular the intellectual property of third parties, their personal rights, provisions under competition law or data protection law, as well as provisions under criminal law. Should the customer violate these obligations , Empion shall be entitled to demand from the customer that the customer no longer processes and deletes the infringing content with the service. To the extent necessary, Empion shall be entitled to delete the infringing Customer Content itself without prior notice. Furthermore, the customer shall indemnify Empion from any third party claims resulting from the infringement, reimburse Empion for reasonable legal defense costs and provide Empion with all information, documents and statements necessary for the legal defense.
7.6 The customer is responsible for the regular backup of the customer content. It is therefore incumbent upon him/her to always keep at least one copy of the relevant data stock as well as, separately, a current back-up stored on his/her own systems and usable. This applies regardless of the fact that Empion performs data backups in the course of the operation of the Service. Empion is not responsible for damages that would have been avoided by a regular backup of all relevant data by the customer.
8 Duration, termination of the contract
8.1 The main contract is initially concluded for the duration of the time specified in the order form of Empion (hereinafter "minimum contract term"). The contract term starts on the 1st day of the month following the month in which the main contract was concluded. For the avoidance of doubt, if the contract is concluded within the month of March, the contract term shall commence on 1 April of the same year. If different wording is provided for in the main contract, this will supersede the termination and extension clauses here.
8.2 The contract can be terminated with a notice period of three months to the end of the contract period. If the contract is not terminated, it is automatically extended by 12 month at a time (hereinafter "extension period"). Within the extension period, termination is possible with a notice period of three months to the end of the month.
8.3 The contract may be terminated by either party without notice for good cause (extraordinary termination). An important reason , which justifies an extraordinary termination by Empion, exists in particular if
8.3.1 the customer culpably violates an essential contractual obligation incumbent upon it and does not refrain from this violation of obligation despite a warning from Empion - insofar as such a warning is necessary - or does not restore the condition contrary to the contract within a reasonable period of time set by Empion for this purpose;
8.3.2 the financial circumstances of the customer have deteriorated significantly, so that the proper fulfilment of Empion's claims appears to be at risk;
8.3.3 the customer becomes insolvent or is threatened with the opening of insolvency proceedings, dissolution, liquidation or conversion.
8.4 Declarations of termination must be made in writing to be effective.
9 Remuneration and terms of payment
9.1 The customer shall pay Empion the remuneration agreed upon in the main contract, consisting of the current usage fee and additionally accepted services. Additional services, which the customer orders from Empion, shall - unless otherwise agreed - be invoiced according to the Empion price list valid at the time of the provision of the service.
9.2 The contractually agreed upon - and stated in the main contract - remuneration is based, in addition to selected service packages and extras, on the information provided by the customer, which the customer has communicated to Empion (e.g.: number of employees, number of hires, etc.). Should it be determined during the setup of the service or during the use of the same that the actual data of the company deviates from the communicated data of the company , Empion is entitled to adjust the price accordingly. Claims for damages by Empion, which are based on the claim of lost profit due to inaccurate/false information provided by the customer, shall remain unaffected by this.
9.3 All payments are made by means of the selected payment option.
9.4 Should the payment option SEPA direct debit be chosen, Empion shall be obliged to inform the Principal in advance of the amount and debit date. It is agreed that this advance information obligation shall be reduced to one business day.
9.5 Empion is entitled to increase the contractually agreed ongoing usage fee once per contractual year, in each case on the first day of a new contractual year (e.g. if the contract begins on 1 May of a year, on 1 May of each subsequent year) in the same proportion as the harmonised index of consumer prices (HICP) of the statistical office of the European Union (hereinafter "Index") has changed compared to the status at the beginning of the contract or since the last increase. Empion is likewise obligated to reduce the contractually agreed upon current user fee once per contract year, in each case on the first day of a new contract year, in the same proportion as the Index has changed compared to the status at the beginning of the contract or since the last increase. Further adjustments shall be made under the same conditions. The starting point is always the index level at the time of the last adjustment.
10 Data protection
10.1 Each party is responsible for compliance with the applicable data protection regulations .
10.2 The Customer shall only process personal data with the Service to the extent that there is a legal basis for this under data protection law. The Customer shall also design its internal organisation in such a way that it meets the requirements of the applicable data protection law, in particular take technical and organisational measures to adequately secure personal data against misuse and loss.
10.3 To the extent required under applicable data protection law, the parties shall enter into the necessary agreements under data protection law, such as commissioned processing agreements (Art. 28 GDPR) or agreements on joint processing of personal data (Art. 26 GDPR).
10.4 Empion will use non-personal data or such data where the personal reference has been removed (anonymization) for analysis, calibration and benchmarking purposes in order to continuously optimize the service for all customers.
11 Confidentiality
11.1 In the context of this Agreement, the Parties may exchange confidential information of a technical or commercial nature, in particular software, know-how, strategies or business plans, business reports and business contacts, etc. (hereinafter "Confidential Information"). (hereinafter "Confidential Information"). The parties may exchange confidential information orally, in writing or electronically. The Parties undertake to treat all Confidential Information disclosed to them in the course of the cooperation as strictly confidential and as equivalent to their own business secrets. Confidential information disclosed by one party may only be used by the other party for contractual purposes. The Parties shall be entitled to disclose Confidential Information to employees and subcontractors to the extent that such employees and subcontractors are subject to confidentiality obligations substantially equivalent to those set forth in this Agreement.
11.2 The obligation of confidentiality shall not apply to information in respect of which it can be demonstrated that
11.2.1 the information was already publicly available or state of the art at the time of disclosure to third parties, or
11.2.2 the information was already known to the receiving party, or
11.2.3 independently developed by employees of the receiving party without access to the shared confidential information,
11.2.4 the information has been lawfully acquired from third parties,
11.2.5 the party disclosing it has waived its protection in writing
11.2.6 obtained the information by means other than through cooperation with the disclosing party, without being subject to any obligation of confidentiality
11.2.7 it has obtained the information by observing, examining, reverse engineering or testing a product or article that has been made publicly available.
11.3 Either Party shall have the right to disclose Confidential Information of another Party upon order of a court of competent jurisdiction or administrative or other governmental authority thereof, provided that the receiving Party promptly notifies the disclosing Party in text form, and to the extent possible prior to disclosure, of such order. The Confidential Information shall, to the extent possible, be marked "Confidential" prior to disclosure.
11.4 The Parties shall ensure that all subcontractors, affiliates, managers, directors, employees and temporary employees with whom they share Confidential Information are bound in writing by confidentiality obligations at least as stringent as those set forth in this Section 12. To the extent permitted by applicable law, the Parties shall ensure that the confidentiality obligations of their officers, directors and employees survive their termination from employment or duties during the term of this Master Agreement. The Receiving Party shall be liable to the Disclosing Party for any breach by its officers, directors and employees of their obligations under this Agreement. The same shall apply to the officers, directors and employees of subcontractors and affiliates that a Party incorporates under this Master Agreement
11.5 Further obligations under data protection law remain unaffected. The right of Empion to name references shall also remain unaffected.
11.6 This confidentiality obligation shall apply for the term of this agreement and for a further three years. Legal or contractual obligations to delete or return data earlier or to keep data permanently secret remain unaffected.
12 Warranty
12.1 The warranty is based on the following provisions and otherwise on the legal warranty regulations with the exception that Empion is not liable regardless of fault for damages that already existed at the time the service was provided (§ 536a Abs.1 BGB) and the right of the customer to remedy defects himself/herself is excluded (§ 536a Abs.2 BGB).
12.2 Empion's warranty shall not apply in the event of defects which are based on the fact that
12.2.1 the customer or his vicarious agents have not used the service in accordance with the contract or have otherwise used it improperly,
12.2.2 the customer has failed to cooperate or has failed to do so in good time,
12.2.3 the system environment or hardware of the customer is not suitable for the use of the service.
12.3 In the event of a defect, the customer shall have the right to have the defect remedied twice before it can assert further rights. In each case, Empion shall be set a reasonable deadline for the rectification. A reasonable period shall be at least four weeks.
12.4 The customer is obligated to immediately notify Empion in text form of any defects of the Service in a manner that enables Empion to reproduce the defect. Empion is not responsible for any damage incurred by the customer because the customer reported a defect late or incompletely.
12.5 Empion is not responsible for third party software. Empion is only responsible for the interoperability between the Service and third party software insofar as the provision of an interface is agreed in writing and a defect affects the functionalities of this interface.
13 Liability of Empion
13.1 If Empion has to pay for a damage caused by slight negligence due to the statutory provisions, Empion's liability shall be limited: In this case, liability shall only exist in the event of a breach of essential contractual obligations (these are such obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the customer regularly relies and may rely; so-called cardinal obligations). Moreover, this liability is limited to the typical damage foreseeable at the time of conclusion of the contract.
13.2 Irrespective of any fault on the part of Empion, any liability in the event of fraudulent concealment of a defect, from the assumption of a guarantee or a procurement risk, in accordance with the Product Liability Act shall remain unaffected.
13.3 Insofar as Empion's liability for damages is excluded or limited in accordance with the above provisions, this shall also extend to the personal liability of the organs, the employees and other staff, the representatives and vicarious agents and shall also apply to the statutory liability in tort.
13.4 The limitations of liability in this clause shall not apply in the event of intent or injury to life, limb or health.
14 Reference
Unless otherwise agreed, Empion shall be entitled to publicly name the customer as a reference customer, in particular to name the customer on websites or in other publications and to depict protected marks of the customer in this context (e.g. brand logo).
15 Changes to the GTCs
Empion shall be entitled to amend these GTC at its reasonable discretion (§ 315 BGB), insofar as the amendments do not affect the main service obligations of Empion or the customer and are reasonable for the customer. Empion shall notify the customer in text form of any changes. The reference can be made on the invoice. If the customer does not object to the changes in text form within six weeks, the GTC in the new version shall become part of the contract. Empion shall refer to the right of objection in the notification of change. If the customer objects to the changes in whole or in part, Empion shall have the right to terminate the contract within one month after receipt of the objection with a notice period of three months to the end of the month.
16 Final provisions
16.1 The exclusive place of jurisdiction for all disputes arising from or in connection with the contract and the use of the service is Berlin, Federal Republic of Germany.
16.2 These GTC and the contractual relationship between Empion and the customer shall be governed exclusively by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, and excluding international private law.
16.3 If any provision of these GTC is or becomes void, invalid or unenforceable in whole or in part, or if a provision that is necessary in itself is not included, the validity and enforceability of all remaining provisions of these GTC shall not be affected. In place of the void, invalid or unenforceable provision or in order to fill the gap in the provision, a legally permissible provision shall apply which corresponds as far as possible to what the parties intended or would have agreed in accordance with the meaning and purpose of these GTC if they had recognised the invalidity or the gap in the provision. It is the express intention of the parties that this severability clause does not result in a mere reversal of the burden of proof, but that § 139 BGB is waived in its entirety. In the event of contradictions between the main contract and these GTC, the provisions of the main contract shall prevail.
Section II - General terms and conditions with customers who are consumers pursuant to § 13 BGB (German Civil Code)
1 Scope, form
1.1 These General Terms and Conditions (hereinafter "GTC") shall apply to all business relationships between Empion GmbH, c/o Smart Host GmbH, Am Kupfergraben 6a, 10117 Berlin (hereinafter "Empion") and its customers (customer and Empion hereinafter each individually also a "Party" and jointly the "Parties"). Section II of these GTC shall only apply if the Customer is a consumer within the meaning of § 13 BGB (hereinafter "Consumer Customer").
1.2 These GTC apply in particular to contracts for the temporary provision of standard software from Empion to the customer.
1.3 These GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that Empion has expressly agreed to their validity in writing or text form (e.g. letter or e-mail). This consent requirement shall apply in any case, e.g. even if the consumer customer has formulated its own terms and conditions and Empion unconditionally renders the contractual services to the customer in knowledge of these.
1.4 Individual agreements made with the consumer customer in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these GTC. For the content of such agreements, subject to proof to the contrary, a contract or the confirmation of Empion in writing or text form shall be authoritative.
1.5 References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
2 Conclusion of contract
The contract of use between the consumer customer and Empion comes into effect through the activation of the user account created by the consumer customer on the Empion website (hereinafter referred to as "contract of use").
3 Subject matter of the contract, services
3.1 Empion is a provider of a recruiting solution for companies and potential employees (hereinafter "Service"). The Consumer Customer is such a potential employee. The subject of the User Agreement is the provision of the Service by Empion for use by the Consumer Customer. Empion makes the Service available for use by Consumer Customers as Software-as-a-Service via the Internet. The Consumer Customer must create an account for the full use of the Service, which can be set up and used exclusively via the Website. Empion reserves the right to offer the Service on other platforms (e.g. via App) in the future. For this purpose, the Consumer Customer must go through the registration process on the Empion Website. This does not yet result in the conclusion of a contract. After sending the registration form, Empion sends the consumer customer an automatic email with which the consumer customer must confirm his email. The conclusion of the contract shall only come about through the activation of the account. Empion shall inform the consumer customer of this with a confirmation e-mail.
3.2 The contract customer may revoke the conclusion of the contract within fourteen (14) days without giving reasons; it is sufficient if the revocation notice is sent before the expiry of the revocation period. The revocation period begins with the receipt of the confirmation e-mail by the consumer customer. Further information on exercising the right of withdrawal, instructions on how to withdraw and the model withdrawal form are contained at the end of these General Terms and Conditions and will also be sent to the Consumer Customer with the confirmation e-mail.
3.3 During the term of the user agreement, the service also includes all updates and other version changes within the scope of the provision under 4.4 of this Section II.
3.4 Empion offers the consumer customer assistance with technical problems and the optimal use of the service (support).
3.5 Empion reserves the right to continuously develop the Service and to expand its scope of functions or to adjust or restrict it to a reasonable extent.
3.6 Empion does not guarantee a successful mediation or the establishment of a contact with a company through the use of the Service.
4 Availability and maintenance
4.1 Empion is entitled to carry out regular maintenance work, but will try to keep the interruptions to a minimum.
4.2 Empion is entitled, but not obligated, to perform updates of the Service within the scope of the maintenance work. Empion shall be entitled to adapt and change the performance spectrum of the Service to technical progress or to discontinue the Service entirely.
4.3 Empion makes no warranty or other type of representation to the Consumer Customer regarding the availability of the Service.
4.4 Empion is not obligated to remedy the malfunction, but must make efforts to remedy the malfunction within a reasonable period of time. Existing warranty rights shall remain unaffected.
5 Subcontractor
Empion shall be entitled to use subcontractors for the performance of the contract.
6 Rights of use of the customers
6.1 Empion grants the Consumer Customer a worldwide, non-exclusive, non-transferable right, limited to the contract term, to use the Service in accordance with the User Agreement and these GTC. The right of use is limited to using the Service web-based on Empion's website.
6.2 The consumer customer shall comply with the agreed scope of the license. If he exceeds this scope, Empion is entitled to demand an appropriate remuneration. In addition, Empion reserves the right to assert claims for damages in this case. Any additional remuneration paid shall be credited against the asserted claims for damages.
6.3 The Consumer Customer acknowledges that the exclusive rights to the Service and all included technologies and provided documentation are vested in Empion. Nothing in this Agreement shall be construed as conferring any rights in the Service or any part thereof to the Consumer Customer. All rights in the Service not expressly granted to the Consumer Customer in this Agreement are reserved by Empion.
6.4 The Consumer Customer may not use the Service for purposes other than those specified in the User Agreement and these GTC and shall protect the Service from unauthorized access by third parties. Without limiting the generality of the foregoing, the Consumer Customer shall in particular not (i) use the Service or any part thereof for any purpose other than the intended and contractual use, (ii) offer or distribute to any third party, sell, resell, lease, rent, loan or otherwise transfer, sublicense or assign any rights in the Service or any part thereof without Empion's prior written consent, (iii) disclose or make available the Service or any part thereof to any third party or permit any person other than Customer's employees to use it in any way; (iv) modify, amend, alter or adapt the Service; (v) reverse engineer, decompile, translate, disassemble the Service or any part thereof or disassemble any data formats forming part of the Service and/or otherwise attempt to obtain the source code or any part thereof (except as permitted under 6.5); (vi) make copies of the Service or any part thereof; (vii) use the Service to develop a competing product or service; (viii) disable any license management system or security mechanism provided with the Service, (ix) access or use the Service to provide data processing or batch processing services to others; or (x) remove, alter or obscure any proprietary or copyright notices, trademarks or other marks of Empion or any third party rights holder.
6.5 The statutory rights of the consumer customer pursuant to §69d (2) and (3) and §69e Copyright Act shall remain unaffected, provided, however, that (i) a decompilation pursuant to §69e Copyright Act may only take place after prior written request to Empion in which the consumer customer requests the required information and Empion does not provide the required information within two weeks, and (ii) the parties conclude an appropriate confidentiality agreement that ensures the protection of the service and the source code from access by third parties.
7 Obligations of the consumer customer
7.1 The Consumer Customer will use the Service only for the purposes of the User Agreement, these GTCs and the purposes stated on the Empion Website.
7.2 The consumer customer undertakes to make all statements made by him on the website truthfully and not to use them improperly. He further undertakes to inform Empion immediately about a termination of a company, if the customer had contact with the companies via the service of Empion or if the company has made contact with the customer under deliberate circumvention of the service.[BMT7]
7.3 Should the consumer customer violate any of the aforementioned obligations, Empion shall be entitled to require the consumer customer to refrain from the respective act and to refrain from performing it in connection with the service of Empion or another Empion product in the future. Furthermore, the consumer customer shall indemnify Empion against any third party claims resulting from the infringement, reimburse Empion for reasonable legal defense costs and provide Empion with all information, documents and explanations required for the infringement.
8 Consumer Content
8.1 Empion enables the Consumer Customer to process its own data (hereinafter "Consumer Customer Content") within the scope of the use of the Service. The consumer customer grants Empion a worldwide, non-exclusive right, limited to the term of the contract, to use the consumer customer content within the scope of the service in order to provide the contractual services. This includes, in particular, the right to reproduce the Consumer Content and to make it publicly accessible within the framework of the Service for the users intended by the Consumer Customer. Empion is entitled to transfer these rights to third parties, insofar as this is necessary for the provision of the service, in particular to host providers.
8.2 The Consumer Customer shall ensure that the Consumer Customer Content does not violate or impair any legal provisions and/or rights of third parties, in particular the intellectual property of third parties, their personal rights, provisions under competition law or data protection law, as well as provisions under criminal law. Should the Consumer Customer violate these obligations, Empion shall be entitled to demand that the Consumer Customer no longer processes the infringing content with the Service and deletes it. To the extent necessary, Empion is entitled to delete the infringing Consumer Customer Content itself without prior notice. Furthermore, the Consumer Customer shall indemnify Empion against any third party claims resulting from the infringement, reimburse Empion for reasonable legal defense costs and provide Empion with all information, documents and statements necessary for the legal defense.
9 Duration, termination of the contract
9.1 The contract of use is concluded for an indefinite period of time and can be terminated by either party with one week's notice.
9.2 The contract may be terminated by either party without notice for good cause (extraordinary termination). An important reason, which justifies an extraordinary termination by Empion, exists in particular if the consumer customer culpably violates an essential contractual obligation incumbent upon him and does not refrain from this violation of obligation despite a warning by Empion - insofar as such a warning is necessary - or does not restore the condition contrary to the contract within a reasonable period of time set by Empion for this purpose.
9.3 Cancellation declarations must be made in text form in order to be effective. The termination can be declared by e-mail as well as triggered in the user account by the consumer customer himself.
10 Data protection
10.1 Each party is responsible for compliance with the applicable data protection regulations.
10.2 The Consumer Customer will only process personal data with the Service if there is a legal basis for this under data protection law and the data relate exclusively to him. The Consumer Customer will not process personal data of third parties.
10.3 Empion will use non-personal data or data where the personal reference has been removed (anonymization) for analysis, calibration and benchmarking purposes in order to continuously optimize the service for all customers.
11 Warranty
11.1 Empion hereby points out to the consumer customer that, according to the current state of the art, it is not possible with reasonable effort to keep complex software products completely free of defects. Empion shall, however, keep the service free of such defects that impair its suitability for the contractual or intended use more than only insignificantly.
11.2 The consumer customer is obligated to inform Empion immediately about the type and occurrence of defects.
11.3 The warranty is excluded for such defects that are based on a use of the service that is not in accordance with the contract or the intended use.
11.4 The statutory warranty rights shall remain unaffected by this clause.
12 Liability of Empion
12.1 Insofar as not otherwise regulated in Sections 12.2 - 12.3, Empion shall be liable in accordance with the applicable statutory provisions.
12.2 Empion shall not be liable in cases of force majeure (armed conflicts, epidemics, pandemics, natural disasters, industrial disputes/strikes, embargoes, terrorist acts or other events, in particular official or legal restrictions imposed due to the aforementioned circumstances, which lie outside the sphere of influence of Empion and which cannot be averted or rendered harmless by Empion even with the greatest reasonable care) or necessary maintenance, repairs or other measures on technical equipment of Empion or a third party that provides data, content, information or transmission capacities, which may lead to unavoidable disturbances, interruptions or a reduction in the performance (speed) of the service.
12.3 Empion shall not be liable for any damage or loss caused by the Consumer Customer's culpable failure to use the Service in accordance with these GTC and the User Agreement.
12.4 The limitations of liability of clauses 12.2 and 12.3 shall not apply in the event of intent, gross negligence, fraud, injury to life, body or health, for statutory product liability, fraudulent concealment of a defect, assumed guarantees and/or for the breach of essential contractual obligations (so-called cardinal obligations) by Empion vis-à-vis the consumer customer. In this case, however, the liability shall be limited to the compensation of the foreseeable, typically occurring damage. With regard to this typical contractual damage, the liability of Empion for property damage and further financial losses resulting therefrom shall be limited to an amount of EUR 30,000.00 per case of damage.
12.5 Insofar as the statutory provisions provide for a direct liability of the legal representatives, employees and/or vicarious agents of Empion vis-à-vis the consumer customer, the limitations of liability according to clause 12.2 - 12.3 shall apply accordingly. For the avoidance of doubt, this clause 12.5 does not limit the liability of Empion towards the consumer customer for actions of the legal representatives, employees and/or vicarious agents of Empion.
13 Changes to the GTC
Empion reserves the right to change these GTC at its reasonable discretion (§ 315 BGB). Empion shall inform the consumer customer of changes to these GTC at least four weeks in advance by e-mail. If the possibility of use of the existing service is impaired by the changes and this impairment is not only minor, the customer shall have the right to terminate the user agreement extraordinarily.
14 Final provisions
14.1 These GTC and the contractual relationship between Empion and the consumer customer shall be governed exclusively by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, and excluding private international law.
14.2 If any provision of these GTC is or becomes void, invalid or unenforceable in whole or in part, or if a provision that is necessary in itself is not included, the validity and enforceability of all remaining provisions of these GTC shall not be affected. In place of the void, invalid or unenforceable provision or in order to fill the gap in the provision, a legally permissible provision shall apply which corresponds as far as possible to what the parties intended or would have agreed in accordance with the meaning and purpose of these GTC if they had recognised the invalidity or the gap in the provision. It is the express intention of the parties that this severability clause does not result in a mere reversal of the burden of proof, but that § 139 BGB is waived in its entirety.
14.3 This clause 14.3 only applies to consumers who are domiciled or habitually resident in a Member State of the European Union and does not affect the statutory provisions on alternative consumer dispute resolution that may exist in countries outside the European Union. The European Commission provides a platform for out-of-court online dispute resolution, which can be accessed at www.ec.europa.eu/consumers/odr. On this platform, the consumer customer will find a list of consumer dispute resolution bodies that can assist in the out-of-court resolution of disputes. Empion is neither willing nor obliged to participate in a dispute resolution procedure before a consumer arbitration board. This clause does not restrict the right of the consumer customer to assert his claims before a competent court.
Information on revocation in accordance with Section II 3.2:
I. Right of withdrawal
You have the right to cancel this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the date of conclusion of the contract.
In order to exercise your right of withdrawal, you must inform us (Empion GmbH, c/o Smart Host GmbH, Am Kupfergraben 6a, 10117 Berlin) by means of a clear declaration (e.g. a letter sent by post or an email to widerruf@empion.de) of your decision to withdraw from this contract. You can use the attached sample cancellation form for this purpose, which is, however, not mandatory.
In order to comply with the cancellation period, it is sufficient that you send the notification of the exercise of the right of cancellation before the expiry of the cancellation period.
II Consequences of revocation
If you withdraw from this contract, we must repay you all payments that we have received from you, including the delivery costs (with the exception of the additional costs resulting from the fact that you have chosen a type of delivery other than the cheapest standard delivery offered by us), without delay and at the latest within fourteen days from the day on which we received the notification of your withdrawal from this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged for this repayment.
Since Empion does not currently charge a user fee for the use of the Website by consumer customers, no payments are generally made under this contractual relationship.
III. sample cancellation form
To: Empion GmbH,
Postal address: Empion GmbH, c/o Smart Host GmbH, Am Kupfergraben 6a, 10117 Berlin, Germany
Email address: widerruf@empion.de
I/we (*) hereby revoke the contract concluded by me/us (*) for the provision of the following service (*)
Ordered on (*)/received on (*)
Name of consumer(s):
Address of consumer(s):
Signature (only in case of paper notification):
Date:
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(*) Delete where inapplicable
