A. Application, Definitions
- The following general terms and conditions of use apply to all business relationships between octimine technologies GmbH, represented by Dr. Michael Natterer and Dr. Matthias Pötzl, Kellerstrasse 27, 81667 Munich, (hereinafter “provider”) and users. The subject of these terms and conditions is the software for research and monitoring services offered by the provider regarding registered patents.
- The version applicable at the time of contract conclusion shall apply.
- The offer is exclusively directed at professional users. Professional users under the terms of these terms and conditions are natural persons or legal entities or partnerships with legal capacity with which a business relationship is entered and upon a conclusion of the legal transaction are acting in their commercial or independent professional capacity.
- Deviating conflicting or additional general terms and conditions of business shall also not be a component of the contract unless their applicability is expressly agreed in writing.
- Insofar as between the parties individual agreements exist these prior agreements shall always have priority over the terms and conditions.
B. Service Scope, Notice to Datasets, Availability of the Service
- The specific scope of performance of the offered services is stipulated in the offer from the provider.
- The provider shall expressly not supply legal advice or any other analysis of data, messages and information collated by the software.
- The provider assumes no warranty for data, messages and information supplied by third parties (patent offices) regarding completeness, currency, accuracy and freedom from third party rights. The software provider operates on the basis of published data. It is therefore to be advised that the data, messages and information is dependent on the publishing practice of the respective patent office or company to make the patent information available. Therefore a daily up to date status of communicated information, messages and data cannot therefore be guaranteed. It can also not be excluded that applications, information or datasets to patents exist that have not been published to date.
- A permanent availability of the provider’s services cannot be guaranteed. Times at which the server is down through technical or other problems outside the influence of the provider (force majeure, third party culpability etc.) may lead to a non-availability that cannot be influenced by the provider. If the security of the offer or the sustainability of the network integrity is endangered through grounds that are outside the influence of the provider, this may temporarily restrict access to the services according to requirement.
- The provider’s service may on the grounds of necessary updates of the software be temporarily unavailable. The provider strives to restrict unavailability to a minimum. An update-related temporary unavailability therefore does not represent nonfulfillment.
C. Conclusion of Contract
- Upon request, the user shall receive an offer that includes the services available and the corresponding costs. A component of this offer is also these terms and conditions. Offers shall be sent via fax, letter, e-mail or via click in the octimine web application.
- The contract shall be concluded upon acceptance of this offer on the part of the user in writing (via fax, letter, e-mail or via click in the octimine web application).
D. Term of the Contract, Termination
- Unless otherwise agreed, the contract shall be concluded for a term of 1 month.
- The contract terms shall be extended by a further month insofar as the contract is not terminated by either party.
- The termination of the contract is for both parties upon one months' notice to the end of the contract term.
- Termination must be issued in writing (via fax, letter, e-mail, or via click in the octimine web application).
- In the event of a termination of contract solely the user is responsible for securing his data.
E. Duties of the User, Handling of Collected Data, Messages and Information
- The user undertakes use of the data, messages and information for his own purposes and shall particularly not publish or sell these.
- The user receives a workspace licence for use of the offer. He undertakes not to forward access data to a third party and to solely use the software for his own purposes and shall not undertake services on behalf of a third party.
- The user shall receive the corresponding access data to use the offer. He is obligated to treat these as confidential and is liable for any improper use that results from the unauthorised use of these access data. If the user should acquire knowledge that unauthorised third parties know the access data, he shall inform the provider immediately In the event that on the grounds of a culpable act on the part of the user unauthorised third parties use the provider’s offer, the user shall be liable to the provider for license fees and compensation. In the event of doubt the user therefore has the possibility and duty to request new access data.
- Insofar as not otherwise contractually regulated it is the duty of the user to regularly secure all working results generated with the provider’s offer (data, messages and information) to which he has access. In particular, the provider has no duty to store the data following termination of the contract.
- The user is not permitted to modify, decompile or use the software for purposes in breach of the contract; in particular so that search assignments are automatically conducted.
- The user undertakes to verify the legal validity of data, messages and information acquired through the software through professionally qualified staff or corresponding service providers. The user hereby acknowledges that an analysis of the data, messages and information shall not be performed by the provider, but is the obligation of the user to ensure the legal scope and a corresponding analysis of the data, messages and information.
F. Costs, Prices, Payment Terms
- The costs are provided in the provider’s offer and shall therefore be clearly indicated to the customer prior to conclusion of contract.
- The provided prices are excluding the statutory VAT unless otherwise stipulated in the provider’s offer.
- The costs provided in the offer are to be paid in advance by the customer for the agreed contract term unless no other agreement is concluded between the parties.
G. Usage Rights
- The provider grants the user simple, non-transferable, non-licensable rights to use the software restricted to the term of the contract within the scope agreed in the contract.
- The user is not permitted to sell, lend, rent or otherwise sublicense the software (and its possible uses) or to make the software publically accessible.
H. Warranty, Guarantee
- The claims of the user on the grounds of existing defects at the time of contract conclusion are excluded insofar as the provider did not knowingly conceal this defect.
- No guarantee promise is issued.
- The provider has unlimited liability
- for intentional acts or gross negligence,
- loss of life, personal injury or endangerment to health,
- under the terms of the German Product Liability Act.
- In the event of a soft negligent breach of a duty that is important to achieve the purpose of the contract (cardinal duty), the liability of the provider is restricted to the amount that according to the type of the transaction in question is foreseeable and typical.
- A further liability on the part of the provider does not exist. In particular there is no liability on the part of the licensor for initial defects insofar as the conditions in para. 1 and 2 are not given.
- The aforementioned limitation of liability shall also apply to employees, representatives and bodies of the licensor.
J. Data Protection
- The provider processes the user’s data according to the purpose of the contract and in accordance with the statutory provisions. For the purpose of using the application, the provider stores the data of the user (e.g. name, email and company). These data shall solely be used by the provider to operate the software, shall treat these as confidential and shall not forward these to third parties that are not involved in the fulfilment of the contract and payment processing. The user has the right upon request to receive information free of charge on his personal data that are stored by the provider. He also has the right to the correction of inaccurate data, the blocking and deletion of his personal data insofar as there is no statutory obligation to retention.
- The provider hereby assures that no personal data shall be forwarded to third parties and shall also not be used for marketing purposes.
K. Off-setting and Right to Reclamation
- The user can only offset those claims that are legally established or are undisputed by the provider.
- A right to reclamation can only be exercised by the user if his counterclaim arises from the same contractual relationship.
L. Amendment to these Terms and Conditions
The provider reserves the right to amend these terms and conditions with future effect. In this case the user shall be informed of the amendment in advance and advised that the amendments apply as accepted unless the user objects within 4 weeks.
M. Oral Agreements, Written Form
- Oral agreements shall not be concluded.
- Additions and amendments to this contract are required to be in writing to be legally binding. This shall also apply to a waiver of this clause on the requirement of the written form.
N. Place of Performance, Legal Venue, Applicable Law, Contract Language
- Legal venue and place of performance is Munich.
- This contract is subject to the law of the German Federal Republic under the exclusion of international private law and the UN-CISG.
- Contract language is English.