These General Terms and Conditions (GTC) provide the basis for the legal relationships with the respect to the computer program “Bion” between Bion Analytics UG (haftungsbeschränkt) (hereinafter referred to as the “Provider”), and its customers (hereinafter referred to as the “Customer”).
The subject of contract is the concession of a possibility of use with respect to the computer program “Bion” (hereinafter referred to as Software) by the customer through internet access within the scope of Software as a Service (SaaS). The customer may use the software for its own ends, process and save its data.
The terms used below have the following meanings for the purposes of these General Terms and Conditions:
Customers: any individual or legal persons or partnerships having legal capacity who register, either themselves or through representatives, for an account in order to use the “Bion” computer program in their name,
Team members: any persons whom the customer entrusts to use its account, or who use this in some other way with the customer’s knowledge and consent. If the customer is an individual, the latter shall also be deemed to be a team member,
Third-party customers: any persons for whom the customer carries out an activity which requires the use by the customer of the “Bion” computer program for collecting or processing data or for facilitating said activity.
Computing software necessary for use as well as necessary storage space shall be provided by a data processing centre commissioned by the Provider. The system area allocated to the customer shall be protected against third party access.
Customer access to the internet is not the subject of this contractual relationship. The customer shall have sole responsibility for the functionality of its internet access, including transmission parts and its own computer.
The Provider shall provide the customer with all necessary access data for the purpose of identification and authentication required for use of the software. The customer shall be prohibited from passing on these data to third parties where this third party has not been named to the Provider as an additional user. New additional users shall be notified to the Provider by the customer before they begin using the software.
The problem-free use of software shall require the use of a modern internet browser and a stable internet connection.
The Customer acknowledges and agrees that: (a) the Software is not an official product and has not been commercially released for sale by Bion; (b) the Software may not operate properly, be in final form or fully functional; (c) the Software may contain errors, design flaws or other problems; (d) it may not be possible to make the Software fully functional; (e) the information obtained using the Software may not be accurate and may not accurately correspond to information extracted from any database or other source; (f) use of the Software may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) Bion is under no obligation to release a commercial version of the Software; and (h) Bion has the right unilaterally to abandon development of the Software, at any time and without any obligation or liability to the Customer. The Customer acknowledges and agrees that it should not rely on the Software for any reason. The Customer is solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the Software. Customer will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of Customer’s use of the Software.
When using the Software, the customer may choose between a Freemium account and a Premium account.
With the Freemium account, the customer can manage up to:
The account can be used by up to two team members. The establishment of several Freemium accounts for a single customer is not permitted.
With the Premium account, the customer can manage up to:
Unless otherwise agreed, the Premium account is not transferable and may only be used by one team member.
Unless the user has chosen a Premium account, his account will be treated as a Freemium account.
The Provider shall be entitled to amend or adjust the contents of service, including the software provided, in case of technological advancement. It shall notify the customer in advance of any such change where the change is associated with any non-trivial restriction for the customer. In such a case, the customer shall have a special right of termination with notice of two weeks to the date of change.
The Provider shall be under no obligation to provide any services to the customer except as explicitly set forth in §4 herein.
The Provider grants to the Customer a non-transferable, non-exclusive license and right to access the SaaS via the Internet and use the SaaS and the User Documentation only as authorized in these Terms and Conditions, solely for the purpose of the Customer’s internal evaluation. The SaaS will be managed by Bion and accessed and used by the Customer using the Internet and Customers’ computers. Bion may provide reasonable assistance in connection with the initial setup of the platform.
The services are provided “as is”. Neither Bion nor its suppliers makes any other warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness fora particular purpose or noninfringement, those arising from a course of dealing or usage or trade, and all such warranties are hereby excluded to the fullest extent permitted by law. Further, Bion does not warrant the SaaS service will be error-free or that use of the SaaS service will be uninterrupted.
No charge shall be levied for setting up and using Freemium accounts.
For Premium accounts (Early-Birds), the Customer shall pay the Provider an annual fee of 800.00 € plus statutory value-added tax. The Customer may be granted additional discounts by using promo codes.
Promo codes (discounts) are one-time offers, and the Provider reserves the right to modify or cancel discounts at any time. Discounts are limited to one per customer and account and may not be combined with other offers, unless otherwise agreed. Discounts are non-transferable and may not be resold.
If fees are paid monthly, the Customer shall pay the Provider a monthly fee of 80.00 € plus statutory value-added tax. The billing period shall begin on the date of registration for the Premium account and shall expire at the end of the day during the following month, which corresponds to the starting date. If the month following the start of the respective billing period is shorter, i.e. does not have the date corresponding to the start date which determines the respective billing period, the billing period shall end on the last day of this month. The date of the first login to the Customer’s premium account following receipt by the Customer of the confirmation e-mail containing the activation link shall be deemed to be the registration date.
The fee for each month shall fall due on the first of each month. If this falls on a Sunday or a statutory holiday, the fee shall be due on the next business day following this. Once the due day has passed, the user shall be deemed to be in arrears without further warning. The date the payment is received in the account of the Provider or of the payment service provider authorized by the latter shall govern this.
The contractual relationship shall commence on the date of the first login by the Customer following receipt of the confirmation e-mail containing the activation link sent by the Provider.
The Software as a Service “SaaS” contract for Freemium accounts shall run for an indefinite period. The Customer may terminate contracts regarding Freemium accounts at any time without notice.
Regarding Premium accounts purchased during the beta-phase, the contractual term will commence when the Provider makes the SaaS available to the Client via the Internet as contemplated by Section 2 (“Web-based license”) above, which shall be a service start date agreed to between the Parties.
The SaaS Term shall continue in effect for an additional period of twelve (12) months (the “Initial Term”) upon official launch of the Software, unless earlier terminated as provided in these Terms and Conditions. Upon expiration of the Initial Term, the SaaS Term automatically renews with the Client payment of Subscription fee to Bion for successive renewal terms of twelve (12) months each (each a “Renewal Term”) unless earlier terminated as provided in these Terms and Conditions.
The Customer may terminate a Premium account at any time as at the end of the current billing period as defined in § 4 para 2. The Provider may terminate the contractual relationship for a Freemium account at any time by giving one month’s notice and may terminate the contractual relationship regarding a Premium account by giving one month’s notice as at the end of a billing period. § 12 para. 2 shall remain unaffected.
Termination may be by electronic means without prejudice to the possibility of termination in writing. The Provider shall provide suitable facilities for such.
The right of termination for important reason without notice shall remain unaffected. An important reason shall exist where one contract party commit a gross breach of duty or, in particular, where insolvency proceedings are opened against a party’s assets, or the other party become insolvent or otherwise unable to pay.
The Customer may access his account and the data stored in it for another two months as of the date of the termination of the contractual relationship. During this period, the Provider shall allow the Customer, at the latter’s request, to export the stored data. Following the end of the period indicated in clause 1, the Provider shall be entitled to delete the account and the data stored therein. The Provider shall be obliged to delete it at an earlier date if the Customer allows him to do so in text form or another form which allows the Provider to authenticate the statement.
The Customer must follow indications made by the Provider with respect to the transcription, localization, determination and notification of disruption. The Customer shall protect software from unauthorized access by third parties and shall secure undertakings from its staff that they do the same.
The Customer is obliged to pay the fee promptly. In the event of arrears of at least two monthly payments, the Provider shall be entitled to block access. Such blocking of access shall not affect the Provider’s right to payment. The account shall be re-activated immediately following the payment of the arrears.
Where the Customer commits a culpable breach of duty and allow an unauthorised third party access to the software or fail to name new users to the Provider before they commence use, the Provider shall be entitled to terminate the contract without notice and with immediate effect as well as to block access.
The right to pursue further claims, for instance under copyright law as well as claims for damages shall remain reserved.
The statutory provisions regarding loan contracts (§598 et seq of the German Civil Code) shall apply to the use of Freemium accounts. In other respects, the regulations regarding lease agreements (§535 et seq of the German Civil Code) shall apply, unless otherwise agreed in these General Terms and Conditions or other agreements of the parties.
Except as otherwise required by law, the liability of Bion and its licensors to Customer or any third party arising out of or in connection with this agreement or the use of the software, or for any error or defect in the software, or for the provision of technical support, training or other services in connection therewith, however caused, and on any theory of liability, including contract, strict liability, negligence or other tort, shall be limited to direct damages not to exceed any fees paid to Bion hereunder. In no event will Bion or its licensors be liable for any indirect, incidental, special, punitive or consequential damages, including damages for Loss of profits, business, revenue, data or data use, even if advised of the possibility of such Damages. These limitations will apply notwithstanding the failure of the essential purpose of any remedy. The limitations of liability set forth in this Agreement reflect the allocation of risk negotiated and agreed to by the Parties. The Parties would not enter into this Agreement without these limitations on its liability. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy.
The Provider shall warrant the protection of data supplied by the Customer in accordance with data protection legislation, the German Telemedia Act and Federal Data Protection Act.
The Provider hereby notifies the Customer to compile, process and use personal data only in as far as this is necessary for execution of the SaaS. The Customer agrees that its data will be saved, transmitted, deleted, and blocked by the Provider as far as this is necessary with consideration for the legitimate interests of the Customer and the purpose of contract.
The Provider shall treat all information and data as are made available to it within the scope of this contract by the Customer in confidence. In particular, this shall apply to information on the Customer’s methods, procedures, trade secrets, trade associations, prices as well as information on the Customer’s contractual partners. The Provider shall further be bound to prevent unauthorized third-party access to this information and Customer data by taking suitable precaution.
The Provider shall be bound to ensure confidentiality as against third parties also through its staff.
The Customer acknowledges that the Software contains confidential information and trade secrets of Bion and its licensors. The Customer will not copy (except as strictly necessary to use the Software in accordance with the terms of section 1 hereof), distribute, sell, sublicense or otherwise transfer or make available the Software or any portion thereof to any third party, remove from view any copyright legend, trademark or confidentiality notice appearing on the Software or Software output; modify, adapt, translate, reverse engineer, decompile or derive the source code for the Software, or authorize a third party to do any of the foregoing. The Customer will reproduce all Bion’s and its licensors’ copyright notices and any other proprietary rights notices on all copies of the Software that Customer makes hereunder. The Customer will not use the Software or any documentation provided therewith for any purpose other than Customer’s internal evaluation and the provision of feedback to Bion, and not to disclose to any third party without the prior written approval of Bion, the Software, its features, feedback (as defined in Section 8,›, related technical information identified as confidential or the results of any performance functional evaluation or test of the Software (the “Confidential Information”). The Customer will use no less than all reasonable efforts to protect the Confidential Information from unauthorized use or disclosure. The Customer may disclose Confidential Information only to those of its employees who have a bona fide need to know such information for Customers’ evaluation of the Software and who have first executed a written agreement that contains use and nondisclosure restrictions at least as protective as those set forth herein. The Customer will immediately report any violation of this provision to
Bion and shall employ all reasonable means to mitigate any damages or losses that Bion may incur as a result of any such violation. Bion and its licensors reserve all rights and licenses in and to the Software not expressly granted to Customer hereunder.
The Provider shall reserve the right to amend or supplement these General Terms and Conditions. Where the Provider wishes to amend the General Terms and Conditions, it shall require the Customer to agree to the new General Terms and Conditions. Where the Customer agrees, business relations shall continue on the basis of the amended version of the General Terms and Conditions.
Where the Customer refuses to agree to the amendments, the Provider shall be entitled to terminate contractual relations to the end of the current invoice month.
With respect to all legal relations under this contract, the parties agree the application of the laws of the Federal Republic of Germany.
Insofar as the Customer also uses general terms and conditions, the contract shall come into existence without express agreement with respect to the inclusion of these general terms and conditions. Insofar as the various general terms and conditions coincide, these terms shall apply. In place of individual colliding terms, the provisions of dispositive law shall apply. This shall also apply where the Customer’s business terms contain provisions which are not contained in the above terms and conditions. Should the above business terms contain rules which are not contained in the Customer’s business terms, the above business terms shall apply.