General Terms and Conditions of diribo GmbH
1. Scope
a) The following General Terms and Conditions (hereinafter referred to as "General Terms and Conditions") shall apply exclusively to all services provided by diribo GmbH: „GTC“).
b) This shall also apply in the event that the Contracting Party submits a quotation to enter into a contract on the basis of its own deviating or supplementary terms and conditions. Any deviating or supplementary terms and conditions of business of the Contracting Party to which diribo GmbH has not expressly agreed shall not become part of the contract in any case, even without express rejection.
c) These General Terms and Conditions shall also apply if diribo GmbH performs the services to the Contracting Party without reservation in the knowledge of conflicting, supplementary or deviating terms and conditions of the contractual partner.
d) All agreements between diribo GmbH and the Contracting Party, which are made for the execution of a contract, must be set down in writing. If agreements between the Parties contain conditions which differ from the GTC, the individually agreed contract provisions shall take precedence.
e) These GTC shall also apply to all future transactions with the Contracting Party insofar as these are legal transactions which fall within the general scope of application of the GTC in accordance with Clause 1a.
f) These GTC apply to contractors in the sense of Section 14 (1) BGB (German Civil Code), legal persons under public law and special funds under public law. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.
2. Conclusion of Contract
a) A contract within the meaning of these GTC shall come into existence with the documented acceptance of an individual quotation or a digital registration by the Contracting Party with agreement to these GTC and the privacy policy. There is no entitlement to the conclusion of a contract of use.
b) If the specified data changes after registration, the user is obliged to update the details in his account immediately.
3. Subject Matter of the Contract
a) diribo GmbH offers solutions and services to the Contracting Party, which exclusively pursue the goal of providing support to the Contracting Party in his efforts of a more efficient worldwide market cultivation in the digital as well as in the analog area. In this context, diribo GmbH currently divides its products into the following groups:
(i) digital solutions and services
(ii) digital-analog solutions and services
(iii) analog-digital solutions and services
(iv) analog solutions and services
b) The solutions and services of diribo GmbH all serve merely to refer customers. The conclusion of a possible business between the Contracting Party of diribo GmbH and an interested party is never a promise or subject of a solution or service.
3.1 Digital solutions and services
a) Digital solutions and services in the sense of these GTC are the use of the platform diribo.com as well as the packages Sales Widget, Store Widget, 3D Generator and 3D ThirdParty.
b) diribo GmbH enables the Contracting Party to present its products including product information as well as the presentation of its company on the website www.diribo.com and / or on the Contracting Party's own pages (hereinafter: "Service") for a fee. The scope of the digital representation depends on the respective package booked by the Contracting Party. A more detailed and binding performance description of the individual digital solutions and services shall be provided as part of the order for the respective digital solution or service. This binding service description shall then become an integral part of these GTC.
c) The Contracting Party shall be solely responsible for entering and updating the products, data sheets and company data. diribo GmbH provides the forms required for this purpose. Alternatively, diribo GmbH offers the maintenance as a service against separate agreement and remuneration.
d) The packages Sales Widget and Store Widget require the careful maintenance of the products by the Contracting Party as described under 3.1 c) - or their commissioning to diribo GmbH, cf. 3.1 c), sentence 3. Only data that is available in the data bases of diribo GmbH can be provided in the aforementioned widgets [cf. 3.1 c)]..
e) The product 3D-Generator with its various manifestations (=packages) is technically based on the developments and services of a third-party provider, 3D IT GmbH, Dresden. For its part, diribo GmbH merely provides the technical requirements to enable the Contracting Party to use the services of 3D IT GmbH. In this respect, the liability and warranty (cf. Clauses 12 and 13 of these GTC) of diribo GmbH for the product 3D-Generator is also limited exclusively to the provision of the technical requirements for the use of this product of 3D IT GmbH.
f) Under the products of the package "3D ThirdParty" diribo GmbH subsumes the integration of the results and/or services of external service providers for the generation - if necessary even interactive - 3-dimensional views of the products of the Contracting Party, to which the Contracting Party would like to refer or to whose results the Contracting Party would also like to fall back within the framework of the solutions and services of diribo GmbH. Here, diribo GmbH offers a partially automated interface (API) in order to be able to take technical data and the corresponding 3D views from third-party databases and store them in diribo GmbH's databases and make them available. In this context, diribo GmbH is only liable for the services of data migration from the sources of the third party named by the Contracting Party - as well as their provision within the scope of the products and packages of diribo GmbH - that it has promised and offered. With regard to the data to be taken over or migrated within the scope of this product "3D ThirdParty", diribo GmbH expressly refers once again at this point to Clause 6, "Contents of the Contracting Party" of these General Terms and Conditions.
g) For technical reasons, it is possible that the posted products cannot be found immediately after posting via the category search/product search or with the help of search terms. The forms filled in by the Contracting Party are converted into a suitable format by diribo GmbH. For technical reasons, errors may occur during the course of conversion with regard to the displayed product data. diribo GmbH will inform the Contracting Party about the completion of the conversion. The Contracting Party is obligated to check the converted product data immediately for completeness and freedom from errors and to notify diribo GmbH of any inaccuracies. If no notification is made, the conversion is considered approved.
h) diribo GmbH is entitled to place banner advertisements on diribo.com and reserves the sole right over the placement or rejection of the placement of any banners.
3.2 Digital-analog as well as analog-digital solutions and services
a) Digital-analog as well as analog-digital solutions and services in the sense of these GTC are all offers and products of diribo GmbH, which are based in any way on the use, further processing, regrouping, enrichment, etc. of existing digital data, in order to be able to use them meaningfully in the course of traditional analog services.
As typical hybrid solutions and services of diribo GmbH can be considered among others the Inquiry Widget, cooperations with trade fair organizers but also many of the services in the worldwide Global Sensors Competence Centers operated by diribo GmbH with partners. At their core, both digital-analog and analog-digital solutions and services are actively supported business initiations based on technical matching processes. These technical, algorithm-based matching processes enable an efficient pre-selection of potential business partners for the Contracting Party.
b) If the Contracting Party uses one of the hybrid (digital-analog or analog-digital) solutions and services of diribo GmbH, the Contracting Party simultaneously grants diribo GmbH the right to carry out the corresponding necessary steps of data use, processing, enrichment, regrouping and similar procedures - exclusively within the framework of the GDPR.
3.3 Analog solutions and services
a) Analog solutions and services within the meaning of these GTC are offers and products whose core is not based on the use of digital data. This can be worldwide training and further education of potential or current customers or employees as well as the execution of other analogous events with reference to sensor technology / measurement technology on behalf of the Contracting Party.
b) For such individual solutions and services, just such individual service descriptions and occasion-related terms and conditions are written - with reference to essential points in these GTC.
4. Software / Access
a) In order to use the forms provided, the Contracting Party must log in to the administration area of the platform with its user name and password.
b) During the registration process, the Customer (= Contracting Party) shall specify an individual user name and password. The Contracting Party can change the password later. The Contracting Party is obliged to keep the access data secret and to prevent unauthorized use of the service by third parties. Moreover, he shall ensure that the users working in his institution also comply with this obligation. If the Contracting Party becomes aware of the misuse of the access data, he must inform diribo GmbH immediately. In the event of misuse, diribo GmbH is entitled to block access to the service. The Contracting Party is liable for any misuse for which it is responsible.
5. Obligations of the Contracting Party
a) The Contracting Party is prohibited from manipulating the Service, in particular from using mechanisms or other scripts in connection with the Service that could interfere with the functioning of diribo GmbH's offers or the overall visual impression. The Contracting Party may not take any measures that may result in an unreasonable or excessive load on the system of diribo GmbH.
b) If the Contracting Party wishes to take such measures, he must notify diribo GmbH in good time in advance. The Contracting Party is then entitled to carry out these measures if diribo GmbH has agreed to this measure, which has been notified in writing.
c) The Contracting Party is obligated to enter and check the product data completely and correctly and to always keep it up to date.
d) The Contracting Party is obligated to provide the corresponding product data for notification to diribo GmbH. If the Contracting Party provides this in full, it will be converted into a format that can be used for diribo after receipt. There is the possibility that diribo GmbH takes over the entering for the Contracting Party. In any case, the Contracting Party is obligated to transmit the product data completely and accurately to diribo GmbH, to check entries for completeness and correctness immediately after they have been placed online, and to inform diribo GmbH immediately about incorrect entries and subsequent changes. diribo GmbH will inform the Contracting Party in text form in due time about the time when the entries will be put online.
6. Contents of the Contracting Party
a) diribo GmbH does not claim any ownership rights to texts, files, images, photos, copyrighted works or other materials that the Contracting Party posts on the Service (hereinafter: "Own Content"). By posting its Own Content on the Service, the Contracting Party grants the diribo GmbH a limited license to use, publicly present and reproduce its Own Content solely on/via or in connection with the Service. This also includes the right to use Own Content when sending newsletters or within the scope of advertising for the Service. After the publication of its Own Content on the Service, the Contracting Party retains all rights to its Own Content, subject to the limited license applicable here. The limited license does not grant diribo GmbH the right to sell or otherwise distribute the Contracting Party's Own Content outside of the Service. If the Contracting Party removes its Own Content from the Service, diribo GmbH will stop the distribution as soon as practicable and possible. At the point in time at which the distribution ceases, the license also ends.
b) The license granted by the Contracting Party to diribo GmbH is a non-exclusive, royalty-free, sub-licensable and geographically unlimited license.
7. Industrial Property Rights, Correctness of Information, Liability for Links
a) The Contractual Party represents, warrants and declares that:
(i) it is the owner of the Own Content published as part of the use of the Service or is entitled for other reasons to grant the license set out in Clause 6 and
(ii) the publication of Own Content on the Service does not violate any applicable laws, including, among others. Data protection laws, exploitation laws, intellectual property rights, copyrights, price quotation regulations, contractual or other rights of natural or legal persons and
(iii) the information entered is complete, accurate and up-to-date.
In the case of links to content of the Contracting Party or third parties, this also applies to content to which links are provided. diribo GmbH reserves the right to temporarily block content that it deems questionable in this respect. The same applies if diribo GmbH is requested by a third party to change or delete content on the Service because it allegedly infringes third-party rights. The Contracting Party is obliged to pay all license fees, fees or other amounts that the Contracting Party owes to natural or juristic persons due to the publication of Own Content on the Service.
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b) The Contracting Party is aware that diribo GmbH does not have any influence on the Contracting Party's Own Content. For the sake of completeness, diribo GmbH points out to the Contracting Party that the own contents selected by the Contracting Party are not checked by diribo GmbH for legal violations and correctness of the information. Therefore, the Contracting Party indemnifies diribo GmbH from all claims of third parties, in particular from all proceedings, damages, costs and expenses of third parties, which are asserted against diribo GmbH directly or against the Contracting Party due to possible illegal actions or incorrect information of the Contracting Party. The Contracting Party is obligated to reimburse diribo GmbH for all costs and damages incurred by diribo GmbH due to claims by third parties based on the publication of its Own Content. If a claim is made against diribo GmbH, diribo GmbH shall be entitled to appeal against any measures taken by third parties. In this context, the Contracting Party shall indemnify diribo GmbH against all costs of legal defense. In return, diribo GmbH undertakes to notify the Contracting Party immediately of the assertion of any legal violations and to conclude an out-of-court or judicial settlement only after prior consultation with the cContracting Party.
c) In the event of a sustained violation of the obligations arising from this clause that has not been remedied after the fruitless expiry of a reasonable period, diribo GmbH is entitled to immediately block the Contracting Party's access to the administration area and to suspend the Contracting Party's presentation and the presentation of its products.
8. Term of Contract, Automatic Extension
a) The contract begins in the case of possible free use of some services of diribo GmbH by the Contracting Party with the activation of the administration area and the sending of the access data. In the case of the use of offers of diribo GmbH that are subject to a charge, the contract begins with the confirmation of a quotation of diribo GmbH accepted by the Contracting Party in writing or digitally only with the final confirmation of this quotation by diribo GmbH. The contract has a term of one (1) year. The contract shall be extended automatically by one (1) year, unless one months' notice of termination is given before the expiry of the term of contract.
b) This shall not affect the entitlement of the Parties to termination for an important reason.
c) The notice of termination must be issued in writing or by e-mail.
9. Change of Package
a) A change of the booked package to a higher-value package is possible at any time. If a package change is ordered, the payment already made for the previous package will be taken into account and incorporated into the price of the now higher-value package as a reduction on a pro rata basis.
b) Upon ordering the package change, a new contract term shall commence in accordance with Clause 8 "Term of Contract, Automatic Extension" of these GTC.
10. Prices, Payment Conditions
a) The remuneration for the services rendered shall be invoiced in advance of the respective package or product term and shall be due for payment no later than 10 days after receipt of the invoice.
b) If the parties have not reached an agreement on the remuneration for a service of diribo GmbH, the service of which the customer could only expect against remuneration according to the circumstances , the customer shall pay the remuneration customary for this service. In case of doubt, the usual rates of payment that the contractor would charge for their services apply.
c) If the Contracting Party is late with payment, diribo GmbH is entitled to charge interest of 5 % above the respective base rate of interest. This shall not affect the assertion of additional damage caused by delay.
d) In case of default, diribo GmbH is also entitled to stop the services, and particularly block the Contracting Party's access to the administration area immediately and suspend the Contracting Party's presentation and the display of its products, unless the blocking/suspension would be a breach of good faith because of the relative insignificance of the remaining part; the Contracting Party is also obliged to continue paying the agreed fee for the duration of the blocking/suspension.
11. Right to Retention, Offsetting, Assignment
a) The Contracting Party can only assert a right to retention from the same contractual relationship. Furthermore, all rights of retention, regardless of the legal relationship, against diribo GmbH are excluded.
b) The Contracting Party is only entitled to offset with recognized or legally established claims.
c) The rights of the Contracting Party are only assignable with written consent on the part of diribo GmbH.
12. Warranty
a) diribo GmbH guarantees the best possible reproduction of the product display in accordance with the respective customary technical standard. However, the Contracting Party is aware that software cannot be guaranteed to operate error-free perpetually in accordance with the state of technology.
b) diribo GmbH warrants that the agreed quality – except for minor deviations – is free from defects and that it can, at its discretion and after setting a reasonable deadline by the customer, supply a defect-free product or eliminate the defective condition. If diribo GmbH decides for a supplementary performance by removal of the defect, the Contracting Party has further warranty rights only after the removal of the defect has failed twice. The reasonable grace period shall not begin before the defect and diribo GmbH's duty of representation have been established and proven.
If subsequent fulfillment has definitively failed, the Contracting Party generally has the choice between a payment reduction or withdrawal from the contract. The Contracting Party is not entitled to withdrawal in the event of a minor contract violation, particularly in the event of insignificant defects.
d) In particular, insignificant errors in the presentation are present (i) if unsuitable software or hardware has been used for display purposes. This applies in particular to outdated systems or browsers, proxies in not current version.
(ii) if there is a disruption of the communication systems by other operators.
(iii) if there is a computer failure due to system failure.
(e) In the event of a server failure for a period of more than 10% of the booked time, the Contracting Party's obligation to pay for the period of the failure shall lapse.
(f) Warranty claims shall lapse within one year, unless otherwise agreed in writing. They shall expire immediately as soon as the customer attempts to make repairs or modifications or fails to follow instructions. The warranty period starts after the end of the agreed work period, and comes into force no later than the expiry of the maximum deadlines specified in Section 199 (3) and (4) BGB (German Civil Code). Other limitation periods of these terms and conditions remain unaffected.
g) Insofar as diribo GmbH is responsible for breaches of duty, clause 13 of these GTC shall apply in addition.
13. Liability
a) All claims for damages or for reimbursement of futile expenses of the Contracting Party against diribo GmbH are excluded, regardless of the legal grounds, unless diribo GmbH or its vicarious agents have acted intentionally or with gross negligence, or have at least slightly negligently violated essential contractual obligations. Essential contractual obligations are those obligations which protect the legal positions of the customer, which are guaranteed to them by the contract in accordance with its content and purpose; further essential contractual obligations are those whose fulfillment makes proper performance of the contract possible in the first place and the observance of which the customer may regularly rely on.
b) In the event of gross negligence or negligent violation of a contractual obligation, the amount of damages is limited to the typical and foreseeable damage.
c) The liability for injury to life, limb, body and health, for the absence of a quality for which diribo GmbH has given a guarantee, as well as liability under the Product Liability Act remains unaffected.
d) diribo GmbH shall not be liable for damages resulting from force majeure, riot, war, terrorist or natural disasters or other events for which it is not responsible, such as strikes, lockouts, traffic disruptions or government orders at home or abroad.
br> e) A statute of limitations of one (1) year applies to all claims for damages or compensation for futile expenditure in the event of contractual or non-contractual liability asserted against diribo GmbH – except in the case of willful intent or loss of life, limb, injuries, damage to health. The deadline commences at the time specified in Section 199 of the BGB (German Civil Code). It shall commence at the latest upon expiry of the maximum periods specified in Section 199 (3) and (4) of the BGB (German Civil Code).
14. Termination
a) The contractual relationship may be terminated for an important reason.
b) In the even of a price increase after the placement of the order, the customer shall be entitled to the right of special termination. The right to termination must be exercised within 14 days of receipt of notification of the price increase.
c) The notice of termination must be issued in writing or by e-mail.
15. Confidentiality and Data Protection
a) The Parties undertake to maintain confidentiality of all trade secrets and confidential information made known to them by the other Contracting Party, in particular all information on customer relations and their details, other essential information such as, for example to treat service descriptions, product specifications, information on product processes as well as other confidential information provided and/or disclosed by the Parties in written or other form in accordance with the principles of a prudent businessman and, in particular, not to use them directly or indirectly in business transactions and/or for competitive purposes and/or to pass them on to third parties in business transactions and/or for competitive purposes and/or to otherwise make them known to third parties directly or indirectly themselves or through third parties.
b) The confidentiality agreement does not apply if information becomes public (e.g. publications in media), was already known to the other party upon receipt, is made available by third parties to a party without breach of a confidentiality obligation, must be made known by virtue of statutory provisions, official orders or judicial orders, in particular judgments. Insofar as a party wishes to invoke one of these exceptional circumstances, it shall be obliged to provide evidence.
c) The Parties must ensure that all persons who they use to provide the services or who come into contact with confidential information within the meaning of Clause 15 (a) in any other way are obliged to maintain confidentiality in accordance with Clause 15 (a) of these GTC.
d) The Parties shall maintain data confidentiality in the sense of the BDSG (German Federal Data Protection Act) and shall only use vicarious agents who are bound by confidentiality obligations when executing the order. The Contracting Party undertakes in particular to use the data of potential customers and interested parties communicated to him via diribo GmbH for the purpose of processing the respective inquiry. If the Contracting Party intends to use the data beyond this, it is obliged to obtain the consent of the customer/interested party in accordance with the applicable data protection regulations.
16. Applicable Law, Place of Fulfillment, Place of Jurisdiction
a) The business relationship between the Contracting Party and diribo GmbH shall be governed exclusively by German law, even if the Contracting Party has its place of residence or registered office abroad. The CISG (United Nations Convention on Contracts for the International Sale of Goods) is ruled out.
b) b) The contract language is German or English.
c) The place of fulfillment is the headquarters of diribo GmbH.
d) Exclusive place of jurisdiction for all disputes arising from this contract is the registered office of diribo GmbH.
e) If the Contracting Party has no general place of jurisdiction in Germany or another EU member state, the exclusive place of jurisdiction for all disputes arising from this contract is the registered office of diribo GmbH.
17. Changes to the General Terms and Conditions
diribo GmbH reserves the right to change these General Terms and Conditions if this is necessary to implement legal requirements, due to changes in supreme court rulings, changes in market conditions or to eliminate doubts about interpretation that have arisen. The changed conditions shall be sent to the Contracting Party by e-mail no later than four weeks before they come into effect. If the Contracting Party does not object to the validity of the new General Terms and Conditions within two weeks of receipt of the e-mail, the amended General Terms and Conditions shall be deemed accepted. diribo GmbH will separately inform the Contracting Party of the two-week period in the e-mail containing the amended conditions.
18. Severability Clause
a) If one or more of these terms and conditions be or become wholly or partially invalid, incomplete or in need of supplementation, this shall not affect the validity of the other provisions.
b) In this case, the Parties undertake to agree on a provision which comes as close as possible to the economic purpose of the invalid provision. The same applies to any gaps in the provisions.
Cottbus, July 20, 2022
diribo GmbH
Calauer Str. 71
03048 Cottbus, Germany
E-mail: [email protected]