Devidence™ General Terms and Conditions
from 8 December 2017.
- § 1 Subject matter
- § 2 License and confidentiality
- § 3 Verification; Scope; Refusal
- § 4 Litigation activity; costs and fees
- § 5 Liability
- § 6 Termination and limitation
- § 7 Transferability; No rights for third parties
- § 8 Fulfillment by third parties; Transfer of Obligations
- § 9 Severability clause; text form
These general terms and conditions govern the contractual and usage relationship between Devidence UG (haftungsbeschränkt) & Co. KG (“Provider”) and the customer (“User”). The user waives the effect of conflicting general terms and conditions.
§ 1 Subject matter
(1) The provider permits in different ways to record contents of websites (the “Service”). This recording of the contents is carried out in particular in the form of PDF files or video files in MPEG-4 format (collectively “Results of the Service”). The provider generally only offers the Results of the Service in digital form via the Internet.
(2) The provider shall endeavour to optimise the persuasive power of the results of the service. For this purpose, the provider will endeavour to provide a true-to-the-original, detailed record of the website (also referred to as “Page”) found under a website address (“URL”). Due to the large number of different websites, the provider cannot guarantee that each URL can be recorded immediately or completely error-free. Instead, isolated errors can occur. For example, “infinite scroll” websites are regularly incompletebecause the end of the website is constantly shifting and new content is being loaded. In the event of display errors (e. g. character shifts in the case of special characters), it is not guaranteed that these will be recognized or corrected in good time for the use desired by the user.
(3) The user therefore checks the suitability of the service for his purposes in good time. This check is in good time if the provider still has one week to adjust after detecting errors. The user regularly receives a preview of the expert opinion (also known as “preliminary opinion”) for review. The user has software available for checking the results of the service. The user does not alter the results of the service in a way that distorts its content - neither before nor after printing or otherwise transferring them to other media or other forms of presentation. The user shall only use the results of the service after careful examination of these - together with the preliminary reports - for errors.
(4) The user shall inform the provider at an early stage in the event that the opposing party or a decision-making body has doubts about the result of the service or its authenticity or if support from the provider is otherwise required.
(5) Reports prepared by the provider do not represent the opinion of the provider and are in principle not checked by the provider for correctness and completeness or the legality of the contents. The user assumes responsibility for the legitimate use of the provider’s products.
(6) The provider does not guarantee that in particular offices, courts, arbitral tribunals or similar institutions (“decision-making bodies”) form a certain opinion on the expert report or on the basis of the expert report. In general, a certain point in time for the preparation or provision of the expert opinion is not guaranteed.
(7) The user himself securely stores all data downloaded by the provider in the original without modifications, with at least one backup to at least one other geographical location. The provider saves only algorithmically derived values of the data from the expert report permanently. This storage takes place in order to confirm the authenticity of an expert report. The provider stores actual content data only temporarily.
(8) In principle, the provider offers the service only for uses with an expected maximum loss to the user under 500,000 €. Consequently, the expected amount in dispute may not normally be higher than this. The provider may reject orders in the event of a conflict of interest. In case of doubt, the supplier accepts an order only by submitting preliminary reports.
§ 2 License and confidentiality
(1) The provider grants the user a worldwide, non-exclusive, non-transferable license to use the expert report, which can be sublicensed under the same conditions and is subject to the following conditions.
(2) The license refers to the contents created by the provider himself, in particular to intellectual property rights (e. g. trademark or copyright) to logos, pictorial works and texts of the provider. The license does not include any rights to the reproduced content of third parties. In particular, the license does not include the images and texts of a website or excerpts from the Whois or DNS repository.
(3) The user may not change the content of the expert report. The user may print or pass on extracts of an expert report, provided that this does not intentionally or grossly negligently mislead about the actual content of the expert report. Preliminary opinions must always be kept confidential. The user may, however, share preliminary opinions with his clients for whom he had them prepared.
(4) The license is suspensive and dissolving conditioned by the observance of the payment obligation according to § 4 and the contents and rights of third parties according to § 9.
(5) Insofar as the user cannot invoke this license, the user undertakes to maintain confidentiality regarding the results of the service.
§ 3 Verification; Scope; Refusal
(1) The provider may confirm to third parties that the expert report corresponds to the original expert report prepared by the provider. In principle, the provider does not require the explicit consent of the user. It is usually sufficient that the third party is in possession of a digital copy of the expert opinion prepared by the provider. In the event of a legitimate interest of the user or provider expressly communicated in advance in writing, the provider shall refrain from such confirmation.
(2) Verification is only possible if the provider is provided with a completely unchanged digital copy of the results of the service. Any insertion of comments or other digital processing of the digitally transmitted file may result in the provider no longer being able to confirm its authenticity.
(3) It is regularly only possible to ascertain whether a result of the service corresponds to the original. In principle, it is not possible to identify the form and extent to which the expert opinion differs from the original. Any change by the user can therefore result in the expert report becoming irretrievably worthless for the user.
(4) The provider can refuse the verification if the user violates essential obligations from this contract at the time of verification unless the provider is under a statutory obligation to verify. An essential obligation arising from this contract is in particular the obligation to pay.
§ 4 Litigation activity; costs and fees
(1) The provider may, if necessary, appear in court or out of court, in particular by verifying or analysing the results of the service or by describing and verifying the proper functioning of the provider’s systems in legal disputes. The provider here always acts diligently and impartially, without being bound by instructions.
(2) The User shall pay the Provider fees, costs and charges in the event of occurrence before decision-making bodies. This includes in particular reasonable travel and travel expenses, accommodation and meals.
§ 5 Liability
(1) Irrespective of the legal grounds, the provider shall only be liable in accordance with the following provisions.
(2) The provider is liable in case of intent and gross negligence according to the legal regulations. The provider is also liable in accordance with the statutory provisions for the assumption of guarantees or other strict liability, as well as for claims under the Product Liability Act or in the event of culpable injury to life, limb or health.
(3) The provisions of § 44a TKG remain unaffected.
(4) In the event of simple negligence, the provider is liable in the event of a breach of an essential contractual obligation, the fulfilment of which makes the proper execution of the contract possible in the first place, and on which the customer may regularly rely (cardinal obligation). In these cases, the provider is liable for the amount limited to the foreseeable, contract-typical damage.
(5) In the event of a data loss caused by the Provider, the Provider shall be liable within the limits of the limitations of liability at the most at the cost of restoring and restoring data that would have been lost even if the Customer had properly backed up the data.
(6) In all other respects, any liability on the part of the provider is excluded.
(7) Insofar as the liability of the supplier is excluded or limited, this shall also apply to the liability of the employees, other employees, representatives and vicarious agents of the supplier.
§ 6 Termination and limitation
(1) Users and providers may terminate this user contract at any time.
(2) The right to extraordinary termination shall remain unaffected.
(3) The provider and the user also have the right to terminate the contract if the opposite party repeatedly or seriously violates the obligations arising from the contract.
13 Applicable law; place of jurisdiction (1) These provisions are subject to the law of the country (especially Germany) in which the respective consumer has his residence or registered office, excluding the UN Convention on Contracts for the International Sale of Goods.
(2) For users who are not consumers, German law shall apply to the contract to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(3) For users who are businessmen within the meaning of the German Commercial Code, a special fund under public law or a legal entity under public law, the exclusive place of jurisdiction for all disputes arising from the contract of use and these general terms and conditions of business is Berlin.
§ 7 Transferability; No rights for third parties
(3) The Provider may assign its rights and obligations - including the rights and obligations arising from data protection and data processing - to a third party. In this case, the user has the right to object within a period of four weeks from receipt of the notification of this assignment. If the user objects, the contract ends automatically, at the latest upon expiry of the objection period.
§ 8 Fulfillment by third parties; Transfer of Obligations
(1) The provider may avail himself of the services of other companies for the purpose of fulfilling the contract and exercising his rights under this contract.
(2) The provider is entitled to transfer all or part of his rights and obligations arising from this contractual relationship to a third party with a notice period of four weeks.
(3) All declarations, which are transmitted within the scope of the concluded contract of use, must be made in writing or by e-mail. This also applies to any amendment of this provision.
(4) The provider may transfer his rights and duties from this contract to a newly founded Devidence UG (haftungsbeschränkt) or Devidence GmbH. This company must have the same shareholders with the same proportion and at least the same amount of share capital as the provider. The user already gives his consent to the transfer of his personal data under the condition that the data is protected at least as well after the transfer as by the provider.
§ 9 Severability clause; text form
(1) Should individual provisions of this contract completely or partially violate mandatory law or be void or ineffective for other reasons, the validity of the remaining provisions shall remain unaffected.
(2) The parties shall replace the void or ineffective provision by a lawful provision which comes closest to the economically and practically intended by both parties in an admissible manner.
(3) Any agreement deviating from these General Terms and Conditions must be in writing.