Software as a Service License, Business and Terms of Use

for the DimCheck.com solution from LogPool.com between

Urs Brüllhardt, LogPool.com, In der Roten Kanne 4, 53127 Bonn "Licensor"

and

DimCheck Customers and their End Users "Customer" or “Licensee”

  1. 1. Scope and subject matter of the contract

    1. These Software as a Service License, Business and Terms of Use (hereinafter "Terms") govern the provision of the DimCheck.com solution by the Licensor to customers and their employees ("Users").
    2. The DimCheck.com solution consists of a software solution ("Analysis Suite"), which the Licensor provides to the Customer as a SaaS solution, a hardware module ("Laser-Tape"), which the Licensor sells to the Customer, and a mobile app ("Mobile App"), which the Customer and its employees, the users, can download and use on their mobile devices.
    3. The Licensee accesses the Analysis Suite via a browser-based web interface in the cloud environment provided by the licensor. The mobile app can be installed via the standard app stores (iOS and Android). The necessary technical capacities, including database capacities, are hosted by Amazon Web Services (AWS) in Germany.
    4. A description of the Licensor's product can be found on the Licensor's website at https://dimcheck.com.
    5. Any general terms and conditions or terms and conditions of purchase of the Customer shall not apply.

  2. 2. Conclusion of contract

    1. The contract between the Licensor and the Customer is concluded in text form with a separate contract document that refers to these Terms. The Terms are an integral part of the contract.
    2. The Customer shall ensure that users take note of these Terms and comply with them.

  3. 3. Granting of rights of use

    1. Unless expressly provided otherwise below, all property rights, industrial property rights and copyrights as well as all associated usage and distribution rights to the Analysis Suite and the Mobile App shall remain in full with the Licensor.
    2. The Licensor grants the Customer and the users of the Analysis Suite and the Mobile App a simple, non-exclusive, non-transferable and non-sublicensable right of use for the duration of the contract term for use for the Customer's business purposes against payment of the agreed remuneration by the Customer.
    3. The Licensor shall transfer ownership of the laser tape to the Customer against payment of the agreed remuneration by the Customer.

  4. 4. Restrictions

    1. The Customer and users are not authorized to remove identifiers, trademarks and/or copyright notices from the DimCheck.com solution.
    2. The Customer and the users are not authorized to make changes and/or manipulations to the DimCheck.com solution and its components.
    3. The Customer and the users are not entitled to lease, sublicense, reproduce, distribute and/or make the DimCheck.com solution available to third parties, either in whole or in part.
    4. The Customer and the users are not entitled to reverse engineer, reverse translate and/or remove program parts from the DimCheck.com solution in whole or in part.
    5. The mandatory provisions of Sections 69 a) et seq. of the German Copyright Act (UrhG) and the Customer's ownership rights to the laser tape shall remain unaffected by the above provisions.
    6. The Customer and users are not entitled to the release of the source code of the Analysis Suite and/or the Mobile App.

  5. 5. Updates / service changes

    1. The Licensor shall publish or make available updates, upgrades and new releases relating to the DimCheck.com solution at its own discretion.
    2. The Licensor is entitled to make technical changes to the DimCheck.com solution at any time - even without the customer's consent – provided, that this does not entail any substantial disadvantages for the Customer and will inform the Customer of this in good time if necessary.

  6. 6. System requirements

    1. Compliance with the system requirements for using the DimCheck.com solution, including sufficient Internet access and the use of suitable browser technology, is the responsibility of the Customer at his own expense and risk.

  7. 7. Remuneration

    1. The Customer undertakes to pay the agreed purchase price for the laser tape and the agreed remuneration for the Analysis Suite and the Mobile App to the Licensor in accordance with the payment modalities agreed in the contract.
    2. All invoices are issued in euros. The prices quoted are net prices and do not include statutory value added tax.
    3. Unless otherwise agreed, the Licensor's invoices shall be paid within thirty (30) days of the invoice date.
    4. Payment shall be deemed to have been made as soon as the Licensor can dispose of the payment amount.
    5. In the event of late payment, Licensor shall be entitled to charge interest on arrears at a rate of 9% above the base interest rate.
    6. The Customer shall only be entitled to rights of set-off and retention against the Licensor's claims if the counterclaim is recognized or legally established and it is a counterclaim from the same contractual relationship. Any assignment of claims against the Licensor shall require the Licensor's consent.

  8. 8. Defects

    1. With regard to the Analysis Suite and Mobile App, strict liability for initial defects pursuant to Section 536 a (1) BGB is excluded. The Licensor's liability for culpable defects and responsibility for the absence of warranted characteristics shall remain unaffected.
    2. In the event of defects in the laser tape, the Licensor shall provide subsequent performance for a period of one year from delivery by delivering a replacement device.
    3. In all other respects, the Licensor's responsibility for defects in the DimCheck.com solution follows from the law.

  9. 9. Property rights / rights of third parties

    1. If a third party asserts claims against the Customer and/or the users in connection with the use of the DimCheck.com solution due to the infringement of property rights, the Licensor shall indemnify the Customer and/or the users against such claims.
    2. The indemnification obligation in accordance with section 9.1 does not apply if the Customer or user culpably violates these Terms when using the DimCheck.com solution and/or is culpably responsible for the violation of third-party rights.
    3. The indemnification obligation pursuant to Section 9.1 requires that the Customer or user informs the licensor immediately of the claims asserted by the third party, does not acknowledge any infringement of property rights, leaves the defense of rights to the licensor depending on the Licensor's decision and supports the licensor in this to a reasonable extent free of charge. If the Customer or user ceases to use the DimCheck.com solution in order to minimize damages, he is also obliged to inform the third party that the cessation of use does not constitute an acknowledgement of an infringement of property rights.

  10. 10. Liability

    1. The Licensor shall be liable without limitation for intent and gross negligence as well as in the event of injury to life, body or health.
    2. The Licensor shall only be liable for simple negligence if the Licensor breaches material contractual obligations (“Kardinalpflichten”). Material contractual obligations are those obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely. In such cases, the Licensor's liability shall be limited to the direct, foreseeable damage typical of the contract.
    3. Insofar as the conditions for limited liability in accordance with Section 10.2 exist on the part of the Licensor, the Licensor's liability shall be limited to the remuneration to be paid by the Customer for one contractual year.
    4. Liability for indirect and unforeseeable damage, loss of data, data network outages, loss of production and use, loss of revenue, loss of profit, loss of savings and/or financial loss due to third-party claims is excluded in the event of simple negligence.
    5. The Licensor is also not liable for the text elements captured by customers and users in the DimCheck.com solution and photos taken after the camera function of their end device has been activated (e.g. of deliveries of goods, invoices, business letters, etc.). The production of text elements and photos and the protection of any confidentiality obligations and third-party rights in relation to the captured text elements, photographed objects and documents shall be the sole legal responsibility of the Customer or user. Accordingly, the Customer must ensure that no unlawful content or content that infringes the rights of third parties is captured, must comply with all relevant data protection regulations and any confidentiality obligations and is responsible for implementing its own guidelines and specifications.
    6. The limitations or exclusions of liability pursuant to Sections 10.2 to 10.5 shall not apply to any statutory strict liability of the Licensor (e.g. under the German Product Liability Act) or liability under a no-fault guarantee.
    7. Insofar as liability is limited or excluded in accordance with Clauses 10.2 to 10.6, this shall also apply to the liability of the Licensor's bodies, representatives, employees and vicarious agents.

  11. 11. Force majeure

    1. In the event of force majeure, the Licensor shall be released from its obligation to perform for the duration of the force majeure event.
    2. The term "force majeure" includes events outside the sphere of influence of the respective party, such as strikes, natural disasters, fire, acts of terrorism, pandemics, etc.
    3. If the force majeure event continues for more than three months, either party shall be entitled to terminate the contractual relationship without notice.

  12. 12. Secrecy

    1. The parties shall treat all information, business transactions and documents of which they become aware about the other party in connection with this contract ("Confidential Information") as confidential and shall not disclose them to third parties. This obligation shall remain in force even after the end of the contract.
    2. The aforementioned obligations shall not apply to Confidential Information, insofar as this is provided in accordance with evidence to be furnished by the recipient:
      • were already lawfully known to the recipient beforehand,
      • were or become generally known without the recipient being responsible for this,
      • are lawfully communicated or provided to the recipient by a third party,
      • have been developed independently of the recipient and without recourse to Confidential Information,
      • must be disclosed pursuant to a binding administrative or judicial order or mandatory legal provisions, provided that the other party has been informed of the disclosure in writing in good time in advance, or
      • have been released in writing by the transferring party for publication.

  13. 13. Profiles and data protection

    1. Customers and users must each choose a user name and password for the creation of the company profile and the employee profiles. This profile data, which may or may not contain personal data, must be stored carefully and adequately protected against unauthorized access by unauthorized third parties. The Customer is responsible for the use of secure passwords and is responsible for the implementation of legal and own IT security regulations.
    2. In addition, the parties themselves are generally responsible for the protection and - in particular with regard to the GDPR and the BDSG - legally compliant handling of personal data.
    3. Insofar as the Licensor processes personal data for the Customer within the scope of the contractual cooperation between the Parties, the Parties shall conclude an order processing agreement

  14. 14. Communication

    1. The Licensor is entitled to use the fact of the contractual cooperation with the customer for advertising purposes to the extent customary in the industry. The customer may only prohibit the licensor from such use for objectively justified good cause.
    2. All rights relating to the distribution and advertising of the DimCheck.com solution are the sole property of the Licensor.

  15. 15. Contract duration

    1. A contract subject to these Terms is valid for the agreed contract term.
    2. The right of the parties to extraordinary termination of the corresponding contract without notice for good cause remains unaffected.
    3. Any termination must be in writing.
    4. The Licensor is not obliged to continue to store the Customer's data or have it stored after the end of the contract, unless there are statutory retention obligations.

  16. 16. Final provisions

    1. Amendments and supplements to these Terms must be made in writing. This also applies to any waiver of this written form clause.
    2. Should individual provisions of these Terms be or become invalid, the validity of the remaining provisions shall remain unaffected. In place of the invalid provisions, the parties shall agree on a valid provision that comes as close as possible to the invalid provision in legal, economic and factual terms. The same procedure shall apply if these Terms contain a loophole.
    3. These Terms shall be governed exclusively by the laws of the Federal Republic of Germany, excluding conflict of laws provisions, and excluding the UN Convention on Contracts for the International Sale of Goods.
    4. The exclusive place of jurisdiction for all disputes in connection with these Terms and any contracts concluded on the basis thereof shall be Cologne.