These general terms and conditions apply between Faru Services GmbH, Trimburgstraße 2, 81249 Munich, Germany, (hereinafter referred to as "Faru") and the customer (hereinafter also referred to as "user"). This Agreement governs the use of the tools provided by Faru, including but not limited to Faru-BusinessCockpit, Faru-InventoryManager, Faru-CategoryAnalysis, Faru-ASINCrawler (hereinafter referred to as "Services" or also "Contract Software").
1.1 The General Terms and Conditions apply to all current and future contracts with entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law.
1.2 The General Terms and Conditions 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 Faru has expressly agreed to their validity. Deviating, conflicting or supplementary general terms and conditions of the Customer shall not become part of the contract even if Faru provides the Service without reservation or enables access to the Services without reservation in the knowledge of the Customer's general terms and conditions.
2.1 The scope of services, the licence model, the nature, the intended use and the conditions of use of the contractual services result from the respective service description on the website of Faru or the visited App- or WebStore where the contractual services can be purchased.
2.2 Faru grants to the Customer, depending on the license model, the non-exclusive, non-transferable right of use of the contractual software listed in clause 4.
2.3 Services beyond the contractually agreed scope of services, such as the development of customised solutions or necessary adaptations, shall require a separate agreement.
2.4 Unless otherwise agreed in individual cases, the prices valid at the time of the conclusion of the contract plus the statutory value added tax shall apply.
2.5 Unless otherwise agreed, all invoice amounts are due immediately.2.6 Payment of the fees shall be made by credit card or by PayPal or via the payment method stored in the selected AppStore or WebStore.2.7 Interest on arrears shall be charged at a rate of 9 percentage points above the respective base rate. The interest is due immediately. The right to assert a higher damage caused by default is reserved. The damage caused by default also includes any currency losses.
3.1 The Customer shall protect the access authorisations as well as identification and authentication information assigned to him or to the Users from access by third parties and shall not disclose them to unauthorised persons.
3.2 Faru shall not archive or back up any data beyond the functionality of the contractual software. The Customer shall be responsible for the backup of the data entered by him or generated by the contractual software.
3.3 The contractual services may only be used by the Customer and only for the purposes agreed in the contract. Any use of the Services in breach of the contract and/or in violation of the law is prohibited. The customer shall not be granted any further rights, in particular to the software or the infrastructure services provided in the respective data centre. Any further use requires the prior written consent of Faru.
3.4 In particular, the Customer may not use the Services beyond the agreed scope of use or have them used by third parties or make them accessible to third parties. In particular, the Customer shall not be permitted to reproduce, sell or make available for a limited period of time, rent or lend the Software or parts thereof.
3.5 Faru shall be entitled to take reasonable technical measures to protect the Customer from any use not in accordance with the contract. The contractual use of the Services shall not be impaired thereby more than insignificantly.
3.6 In the event that a user exceeds the scope of use contrary to the contract or in the event of an unauthorised transfer of use, the Customer shall, upon request, immediately provide the Provider with all information available to him for the assertion of claims due to the use contrary to the contract, in particular the name and address of the user. In this case, Faru shall be entitled to damages against the Customer in the amount of the licence fee which would have been incurred in the case of licensing in accordance with the contract. Faru shall be free to prove any further damage.
4.1 The respective agreed licence model "Software as a Service" (4.1.1), "Software Lease" (4.1.2) and "Software Purchase" (4.1.3) shall apply to the Contract Software under the following conditions.
4.1.1.1 Faru shall make the Services available to the Customer for use in the respective current version via the Internet against payment for the duration of the contract. For this purpose, Faru stores the Software on a server accessible via the Internet.
4.1.1.2 The billing period corresponds to the respective minimum term. The fee shall be paid at the beginning of the billing period. An agreed set-up fee shall be paid at the beginning of the contract period.
4.1.1.3 The customer shall be notified of price changes in good time for the next billing period.
4.1.1.4 The user receives for the duration of the contract the non-exclusive, non-transferable, non-sublicensable right to use the Services for his own use on a PC owned or possessed by him.
4.1.1.5 Faru provides the access to the Services in the area of Faru's disposal, i.e. from the interface data centre to the internet.
4.1.1.6 The Customer is aware of the fact that restrictions or impairments of the Services may occur which are beyond the control of Faru. This includes in particular actions of third parties not acting on behalf of Faru, technical conditions of the Internet beyond Faru's control as well as force majeure. Also the hardware and software and technical infrastructure used by the Customer may have an influence on the services of Faru. As far as such circumstances influence the availability or functionality of the services provided by Faru, this shall not affect the contractual conformity of the services provided.
4.1.1.7 Any strict liability of Faru due to defects which already existed at the time of the conclusion of the contract shall be excluded.
4.1.1.8 The provision of the contractually agreed services shall take place from the contractually agreed date initially for the duration of the agreed term. During this minimum term, premature ordinary termination is excluded on both sides.
4.1.1.9 If the contract is not terminated at the end of the minimum term, the contract shall be extended in each case by the duration of the minimum term until ordinary notice of termination is given at the end of the respective extension period.
4.1.1.10 The right of each contracting party to extraordinary termination for good cause remains unaffected.
4.1.1.11 The customer shall back up his data files (e.g. by download) on his own responsibility in good time before termination of the contract. The customer will generally no longer be able to access his data files after termination of the contract for reasons of data protection law.
4.1.2.1 Faru shall provide the Customer with the Services in the respective current version via the App- or WebStore for use against payment for the duration of the contract.
4.1.2.2 The billing period corresponds to the respective minimum term. The fee shall be paid at the beginning of the billing period. An agreed set-up fee shall be paid at the beginning of the contract term.
4.1.2.3 The customer shall be notified of price changes in good time for the next billing period.
4.1.2.4 The user receives for the duration of the contract the non-exclusive, non-transferable, non-sublicensable right to use the Services for his own use on a PC owned or possessed by him.
4.1.2.5 Faru provides access to the Services in the AppStore or WebStore.
4.1.2.6 The Customer is aware of the fact that restrictions or impairments of the Services may occur which are beyond Faru's control. This includes in particular actions of third parties not acting on behalf of Faru, technical conditions of the Internet beyond Faru's control as well as force majeure. Also the hardware and software and technical infrastructure used by the Customer may have an influence on the services of Faru. As far as such circumstances influence the availability or functionality of the services provided by Faru, this shall have no effect on the contractual conformity of the services provided.
4.1.2.7 Any strict liability of Faru due to defects which already existed at the time of the conclusion of the contract shall be excluded.
4.1.2.8 The provision of the contractually agreed services shall take place from the contractually agreed date initially for the duration of the agreed term. During this minimum term, premature ordinary termination is excluded on both sides.
4.1.2.9 If the contract is not terminated at the end of the minimum term, the contract shall be extended in each case by the duration of the minimum term until ordinary notice of termination is given at the end of the respective extension period.
4.1.2.10 The right of each contracting party to extraordinary termination for good cause remains unaffected.
4.1.3.1 The user receives the non-exclusive, non-transferable, non-sublicensable right to use the services for his own use on a PC owned or possessed by him.
4.1.3.2 If the customer is an entrepreneur, he must inspect the contractual software for obvious defects immediately upon receipt and notify the seller immediately of any such defects, otherwise any warranty for such defects shall be excluded. The same shall apply if such a defect becomes apparent at a later date. § Section 377 of the German Commercial Code (HGB) shall apply.
4.1.3.3 With the exception of claims for damages, warranty claims based on material defects shall become statute-barred after two years or after one year if no consumer is involved in the transaction. The limitation period begins with the download of the contractual software in the AppStore or WebStore.
4.2 The Services may only be used in unmodified form. In particular, it is not permitted to decompile, extract or convert (reverse engineering), edit or copy the services or parts thereof.
4.3 The user is entitled to make a backup copy if this is necessary to secure future use.
4.4 Copyright notices and other features serving to identify the programme may not be removed or changed.
5.1 The contracting parties are obliged to maintain secrecy about business and trade secrets as well as other confidential information that becomes known in connection with the execution of the contract. The contractual partners shall also impose these obligations on their employees and any third parties engaged.
5.2 "Confidential information" means all information and documents of which the other party becomes aware relating to business transactions of the other party concerned, in particular but not exclusively sales and product data.
5.3 The contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is fraught with security risks. In this type of communication, they will therefore not assert any claims based on the lack of encryption, except to the extent that encryption has been previously agreed.
6.1 As far as Faru has access to personal data of the Customer or from the Customer's area, Faru shall act exclusively as a processor and shall process and use these data only for the execution of the contract. Faru shall comply with the Customer's instructions for the handling of such data. The Customer shall bear any adverse consequences of such instructions for the performance of the contract. The Customer shall agree with Faru the details of Faru's handling of the Customer's data in accordance with the requirements of data protection law.
6.2 The Customer shall remain the data controller both generally in the contractual relationship and in terms of data protection law. If the Customer processes personal data (including collection and use) in connection with the contract, the Customer warrants that it is entitled to do so in accordance with the applicable provisions, in particular the provisions of data protection law, and shall indemnify Faru against any claims of third parties in case of a breach.
6.3 The following shall apply to the relationship between Faru and the Customer: vis-à-vis the data subject, the Customer shall be responsible for the processing (including collection and use) of personal data, except to the extent that Faru is responsible for any claims of the data subject due to a breach of duty attributable to it. The Customer shall responsibly examine, process and respond to any enquiries, requests and claims of the data subject. This shall also apply in case of a claim against Faru by the data subject. Faru shall support the Customer within the scope of its duties.
6.4 Faru warrants that data of the Customer will be stored exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union or in another contracting state of the Agreement on the European Economic Area, unless otherwise agreed.
7.1 The Customer shall indemnify and hold Faru harmless from any and all claims of third parties based on infringements of rights, which are based on an unlawful use of the subject matter of the Service by the Customer or which are made with the Customer's approval. If the Customer recognizes or has to recognize that such an infringement is imminent, there is a duty to inform Faru immediately.
7.2 Faru may revoke the Customer's access authorization if the Customer significantly exceeds the use permitted to him or violates regulations for the protection against unauthorized use. The Provider's claim for remuneration for the use exceeding the agreed use remains unaffected.
7.3 For each case in which a contractual service is used without authorisation in the customer's area of responsibility, the customer shall pay damages in the amount of the usage fee. The Customer reserves the right to prove that the Customer is not responsible for the unauthorised use or that there is no damage or a significantly lower damage. Faru shall be entitled to claim further damages.
8.1 The Customer is obliged to notify Faru immediately and as precisely as possible of any functional failures, malfunctions or impairments of the Services.
9.1 There is no obligation to provide updates. However, Faru may, at its sole discretion, provide updated versions of the Services or improvements to the Services. Faru shall inform the Customer about updated versions and corresponding usage instructions electronically and make them available accordingly.
10.1 Faru shall be liable for damages of the Customer caused by intentional or grossly negligent conduct of Faru, for personal injuries and damages according to the Product Liability Act in accordance with the statutory provisions. This shall also apply to damages caused by Faru's vicarious agents.
10.2 In case of ordinary negligence, Faru shall only be liable
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfilment of which enables the proper performance of the contract in the first place and the observance of which the contracting party regularly relies on and may rely on); in this case, however, Faru's liability shall be limited to the compensation of the foreseeable, typically occurring damage.
10.3 In all other respects, Faru's liability shall be excluded.
11.1 In case of a material defect, Faru satisfies the obligation of supplementary performance by providing updates.
11.2 In case of an only insignificant reduction of the suitability of the services for the contractual use, the Customer shall not have any claims due to defects.
12.1 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. The authoritative version of these General Terms and Conditions is the version available in German.
12.2 If the Customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance and jurisdiction for all disputes arising from contractual relationships between the Customer and Faru shall be Faru's registered office.