These general terms and conditions of business (“GTC”) dated November 1, 2018 are the contrac-tual basis for all legal transactions between riskmethods GmbH, Balanstrasse 49, 81669 Munich, and the customer. The current version of these GTC can be retrieved through the website of risk-methods GmbH.
1. Contract components
The contract between riskmethods and costumer consists of the following components:
- Any individual agreements, if any
- Order Form
- These GTC
A conflict between these different components, if any, will be resolved by descending order (i.e. an individual agreement taking precedence over an Order Form and an Order Form taking precedence over these GTC). All contract components are available to the parties.
2. Contract scope
riskmethods provides access to the customer to an Internet portal operated by riskmethods. The customer can enter data of its supply chain through its portal access—for example, data on busi-ness partners, logistically relevant localities, etc. On the basis of this data, riskmethods supplies the customer information for recognizing worldwide risks in supply chains at an early stage. riskmeth-ods itself generates no information or news, but supplies the software as a service for processing existing information or news according to the needs of the customer and making it available to the customer for evaluation of the risks in the supply chain. riskmethods does not check the news and information for completeness or correctness, but merely acquires it from external sources. risk-methods has no duty to review the news and information for completeness or correctness. Risk-methods disclaims any liability for the completeness or correctness of the news and information.
3. Confidentiality agreement
3.1. riskmethods will not modify the data and information of the customer nor disclose it to third parties unless there is a separate agreement for this purpose. The provisioning of the promo-tional code for the free test for the customer's suppliers is exempt from the foregoing, as well as anonymized data derived from cross-network risk analyses. This data is in turn provided to the customer in the form of functionalities (e.g. industry-related provision of regions/locations with critical shortages, system-related suppliers). Equally exempt is the use of the data for un-derwriting and risk engineering purposes by riskmethods and its affiliates.
3.2. Both parties undertake to keep strictly confidential all information about the contracting party that is obtained in the course of the cooperation. Besides the organizational processes of op-erations, this especially applies to all other information that is not publicly accessible, particu-larly trade and business secrets.
3.3. The parties are obligated to ensure their confidentiality obligations hereunder also with re-spect to third parties.
3.4. Third parties in terms of this agreement are freelancers and subcontractors of riskmethods, provided that riskmethods has likewise obligated them to confidentiality and secrecy.
3.5. The following information is exempt from the confidentiality obligations hereunder: (i) infor-mation provided by a contracting party which was already in the possession of the other con-tracting party at the time of provision, (ii) information that is obvious, (iii) information that was lawfully obtained by third parties, or (iv) information which the recipient is obligated by law to pass on to public authorities or third parties. The contracting party invoking such an exception bears the burden regarding the existence of this exception.
3.6. The confidentiality obligations hereunder shall survive termination or expiration of the agree-ment as long as such information is confidential.
3.7. riskmethods undertakes to comply with the relevant provisions of the German Data Protection Act (BDSG) and of the EU General Data Protection Regulation (GDPR).
4. Rights of use
4.1. The customer is granted the nonexclusive right, limited to the duration of this agreement, to access the riskmethods services over the Internet by browser or other mobile applications and to use the functionalities of the riskmethods services in accordance with this agreement. The customer receives no additional rights to the riskmethods services.
4.2. The customer may only use the riskmethods services and the news and indicator reports con-tained therein for its own business activities. Resale or redistribution is excluded. The custom-er is expressly prohibited from using the information that is provided to it within the scope of this agreement to offer its own risk management.
4.3. The customer is prohibited from using the riskmethods services beyond what is provided for in this agreement or to allow third parties to use them or to make them available to third parties.
5. Third-party intellectual property rights
5.1. Either party ("indemnifying party") undertakes to defend the other party ("indemnified party") in litigation at its expense and in its own discretion (if necessary, by way of an assignment for purposes of litigation (Prozeßstandschaft), in case the litigation is based on the allegation that the use of the data shared or the services provided hereunder, as applicable by the indemnify-ing party constitutes an infringement of a third party patent, trade secret or copyright. The in-demnifying party shall compensate the indemnified party for any obligations to pay damages and costs which have been imposed on it by the adjudication of a court of last resort that is based exclusively on such a claim. The prerequisite for this is that the indemnified party
5.1.1. promptly informs the indemnifying party in writing about the assertion of such a claim,
5.1.2. the indemnifying party grants the power to independently defend and settle the claim,
5.1.3. provides all available information and furnish any assistance to the indemnifying party at its expense, and
5.1.4. does not resolve such litigation through settlement without the prior written approval of the indemnifying party
5.2. If data or services provided hereunder are the subject of an infringement claim or this is ex-pected in the opinion of the indemnifying party, the indemnifying party undertakes
5.2.1. either to provide the indemnified party the right to continue to use such data or services,
5.2.2. to replace the data or services or modify them in such a way that an infringement of an in-tellectual property right no longer exists, or
5.2.3. if neither section 5.2.1 nor 5.2.2 is reasonable, to take back such data or service and, in the case of the services, refund the pre-paid fees for such services, if any, on a pro-rata basis.
5.3. The terms of this section 5 govern the full extent of the liability of the one party (as the indem-nifying party) and the exclusive remedies of the other party (as the indemnified party) in the event of intellectual property right infringements. The limitation indicated in section 7.1 does not apply.
6. Google Maps
7. Liability and Warranty
7.1. The parties are liable to each other for losses they have caused, intentionally or through gross negligence, that are founded on loss of life, bodily injury or an injury to health, or for which the Product Liability Act provides compulsory liability, and in the cases in which they have war-ranted the nature of the contracted object.
7.2. Additionally, the parties are liable to each other for slight negligence for losses up to a maxi-mum of € 200,000.00 per case of liability, maximally twice that amount per year.
7.3. For incidental and consequential damages (including loss of use and lost profit), the parties are liable to each other only in the cases mentioned in section 7.1.
7.4. If damages claims exist against third parties, they shall be assigned to the contracting party.
7.5. Further damages claims are excluded.
8. Termination and consequences of termination
8.1. The agreement shall take effect upon its signing or through the signing by both parties of a proposal that refers to the GTC. The term of the provision of the riskmethods services begins on the day of notification of the URL and login data by e-mail to the customer and has an initial duration of twelve (12) months as of that date.
8.2. The agreement shall automatically renew for twelve (12) months at a time unless a party noti-fies the other party at least thirty (30) days before the end of the respective contract term that it does not wish to renew the agreement. Unless otherwise agreed, the same individual prices apply during an automatic renewal period as during the immediately preceding period.
8.3. If the parties have agreed to an initial agreement term which extends beyond the twelve months mentioned in section 8.1, in deviation therefrom, the agreement shall always auto-matically renew for the initial term actually agreed to, but by a maximum of twenty-four months in each case.
8.4. The parties’ right to terminate for cause without prior notice remains unaffected. Cause exists, for example: - when insolvency proceedings are commenced concerning the assets of the other party or the commencement is rejected for want of assets; - when the customer culpably breaches one of its obligations under this agreement and fails to cure such breach despite warning by riskmethods; - when the customer is in default with payment of the consideration for two months.
9. Final provisions
9.1. To be effective, all amendments or additions to the agreements of the parties must be in writ-ten form. On its part, the written form requirement can only be waived through a writing. Only individually agreed terms pursuant to § 305b of the German Civil Code (BGB) are excepted from this.
9.2. If one or more terms of this agreement should be or become invalid or unenforceable, as a whole or in part, this shall not affect the validity of the remaining terms. If the invalidity or non-enforceability is based on the too extensive (or too small) substantive, spatial, temporal or other scope of a contractual term, the term is deemed agreed to in its most extensive (or smallest) valid and enforceable scope possible. The invalid or unenforceable provision shall be replaced by the provision which comes economically closest in a legally permissible manner to that which the parties desired with the invalid or unenforceable provision. The same shall ap-ply in the event of a contractual omission.
9.3. This agreement is subject to the law of the Federal Republic of Germany, with exclusion of the UN Convention on Contracts for the International Sale of Goods and the provisions of private German international law. Both parties agree to the effect that, before resorting to a court of law, they shall attempt to resolve, through a collaborative and cooperative understanding, any conflicts and differences of opinion in connection with this agreement and/or an individual or-der. The exclusive jurisdiction for all disputes arising in connection with this agreement shall be in Munich.