General Terms and Conditions

General terms of use for the software platform
General Terms and Conditions for Consulting Services

The following General Terms and Conditions apply to the general business relationship between Xamine and the client in the version valid at the time the contract is concluded, insofar as no product- or service-specific General Terms and Conditions apply.

Use of the software platform is subject to the terms of use of the software, which are also included in the General Terms and Conditions.

Consulting services are subject to the Terms and Conditions for Consulting Services, which are attached to the General Business Relationships.
By placing an order or accepting the service, the customer acknowledges all of the above conditions. These terms and conditions shall also apply to future business relations, even if they are not expressly agreed again.

§ 1 Scope of application, deviating GTC

(1) Xamine does not recognize deviating conditions of the client, unless Xamine has expressly agreed to their validity in writing.
(2) Deviating agreements must be documented on a permanent data carrier, e.g. by e-mail.
(3) Changes to the conditions including this confirmation clause as well as the agreement of delivery dates or deadlines, which may be binding or non-binding, require confirmation by Xamine. The validity of individual agreements remains unaffected.
(4) These General Terms and Conditions apply exclusively to entrepreneurs within the meaning of § 14 BGB (German Civil Code).
(5) An entrepreneur is a natural or legal person or a partnership with legal capacity which, when entering into a legal transaction, acts in the exercise of its commercial or independent professional activity.
(6) Insofar as Xamine’s offer to the client contains written provisions that deviate from the following General Terms of Use, the individually offered or agreed terms of use shall prevail.

§ 2 Offer and conclusion of contract

(1) Xamine submits a written offer to the customer to conclude a contract for individual Xamine services. The offer requires a written declaration of acceptance by the client.
(2) The contract between the client and Xamine is concluded upon receipt of the written declaration of acceptance by Xamine.

§ 3 Prices and terms of payment

(1) The prices and terms of payment are set out in the offer for the conclusion of the contract.
(2) Unless otherwise stated in the respective valid offers, the prices do not include VAT.
(3) All prices are payable without deduction.
(4) In the event of late payment, Xamine is entitled to block the use of further services, in particular access to the system and the database. During the period of default, the client shall pay interest on the debt at the statutory interest rate in accordance with § 288 BGB.
(5) After unsuccessfully setting a deadline, Xamine is entitled to extraordinary termination of the contract. The claim for payment remains unaffected.
additionally for consulting services:
(6) All remuneration and agreed lump sums as well as the expenses incurred (travel costs, expenses, work materials, purchased services, etc.) are net prices and must be reimbursed.
(7) If the contracting parties have not agreed on a specific remuneration, Xamine will charge the services provided at hourly rates based on the Xamine price list valid at the time of conclusion of the contract. In this case, external services will be invoiced according to actual expenditure.
(8) Xamine can demand reasonable advances on the remuneration, lump sums and reimbursement of expenses at any time. Xamine is entitled to invoice partial services rendered. At the end of the contract, Xamine issues a final invoice, which also contains a list of all services and expenses invoiced to date and their status (paid / unpaid).
(9) With payment of the remuneration / lump sum, all claims of Xamine for the contractual provision of its consulting services are settled.

§ 4 Service description

Software platform

(1) The subject of the service is the provision of and fee-based access to the platform provided by Xamine and described in more detail in the current product description.
(2) The scope of functions results from the current product description.
(3) The contractual partner intends to use the platform for the analytical evaluation of the website operated by the contractual partner and/or third parties.
(4) Xamine guarantees an availability of 98% per month. Announced maintenance times are not counted towards availability.
(5) This does not apply to times when the server is not accessible via the Internet due to technical or other problems beyond Xamine’s control (force majeure, fault of third parties, etc.). This also excludes periods of planned unavailability that are necessary for the maintenance or servicing of the systems. Times of planned unavailability will be agreed separately between Xamine and the client. Xamine may restrict access to the services if the security of network operation, the maintenance of network integrity, in particular the avoidance of serious disruptions to the network, the software or the stored data require this.
(6) The client is aware that data originate from third party sources such as “Google” and that Xamine has no influence on their accuracy, completeness or timeliness and is not responsible for them.

Consulting services

(1) Xamine offers consulting in the field of online market research and consulting services.
(2) The scope of the services to be provided by Xamine results from the underlying contract.
(3) Xamine does not owe a certain success or a certain result of market research or consulting services. However, Xamine guarantees that the services will be provided with the care of a prudent businessman.

§ 5 Granting of rights

(1) Xamine is the owner of all rights in connection with the platform and the associated database and software. All copyrights, trademark rights and other property rights to the platform, the database work and the database belong exclusively to Xamine.
(2) The client has the simple, non-transferable, non-sublicensable right, limited in time to the term of the contract, to make individual data records visible on his screen via the online search masks provided by Xamine and to print them out for permanent visualization. Automated queries using scripts or similar are not permitted. Copyright notices or other proprietary notices on the platform may not be changed.
(3) The client may not use the data obtained through the query in whole, in part or in part to create its own database in any form and/or for commercial data processing or to pass on information to third parties.
(4) With the transmission of the content set up by the platform and required for analysis, the contractual partner grants Xamine the right to use this content for the duration of this user contract for the types of use required for provision in the database and retrieval, in particular to store, reproduce and keep the content available.
(5) Xamine is revocably entitled to name the client, including the logo, as a reference customer on its website and in advertising materials.

§ 6 Mutual rights and obligations

(1) Xamine undertakes to provide the customer with the access data required to use the Internet platform on a data carrier or by electronic data transmission, e.g. by e-mail, within five working days of the binding order. Passing on access data to third parties or making copies for third parties outside the scope of this contract is not permitted.
(2) The customer is obliged to keep passwords for the use of Xamine services secret and to inform Xamine immediately if there are indications of misuse of a password by third parties.
(3) The customer is responsible for all activities carried out with his password. If the customer is not responsible for the misuse of his password because there has been no breach of the existing duty of care, the customer shall not be liable.
(4) The customer shall create the necessary conditions for the use of Xamine services, including network connections (Internet connection), telecommunications connection, hardware and software (in particular current and compatible browser technology) and sufficient competent personnel.
(5) The client is obliged to provide all necessary cooperation so that Xamine can provide the contractual services.
(6) All questions from Xamine on matters relating to consulting services to be provided will be answered fully, accurately and promptly.
(7) Xamine will also be informed at an early stage, without being asked, about circumstances that may be of importance for a consulting service to be provided.
(8) Results and reports provided by Xamine will be accepted by the client within 10 working days of receipt.
(9) Xamine will be informed immediately in writing of any necessary corrections and change requests. If the client does not respond within a period of 10 working days from receipt, the service shall be deemed to have been accepted.
(10) After this contract has been signed by both parties, Xamine is authorized to communicate this contractual relationship to the outside world on the contractor’s website.
(11) The customer undertakes to delete all electronic copies of the contractual access data after termination of the contractual relationship. Information and content that is available in embodied form must be passed on to Xamine.

§ 7 Deadlines and dates

(1) Agreed dates and deadlines are only binding if they have been confirmed in writing by Xamine and the customer has provided Xamine with all information and documents required for the execution of the service in good time. Agreed deadlines shall commence upon receipt of the order confirmation. If additional or extension orders are subsequently placed, the deadlines shall be extended accordingly. Unforeseeable, unavoidable events for which Xamine is not responsible and for which Xamine is not responsible, such as force majeure, war, natural disasters, official orders or labor disputes, release Xamine from the obligation to deliver or perform on time for their duration.
(2) If the provision of services by Xamine is delayed, the customer is only entitled to withdraw from the contract if Xamine is responsible for the delay and a reasonable deadline set by the customer for the service has expired without success.
(3) If there are delays for which the client is responsible, for example due to subsequent change requests or late provision of information, the delivery may be postponed beyond the period of delay. Xamine offers service on working days from 9:30 a.m. to 5:00 p.m. Public holidays at the client’s location are not considered working days.

§ 8 Confidentiality

(1) Neither Party shall use or disclose Confidential Information of the other Party without the prior written consent of the other Party, except to fulfill its obligations under this Agreement or as required by law, regulation or court order. The contractual partner obliged to disclose confidential information shall inform the other contractual partner of this as early as possible before disclosing this information. Upon termination of this Agreement, the parties shall immediately return or destroy all Confidential Information and confirm this in writing upon request.
(2) “Confidential Information” within the meaning of this Agreement means all proprietary data and all other information disclosed by one of the Parties to the other that is either marked as “confidential” or confidential by virtue of its content. Notwithstanding the foregoing, Confidential Information shall not include information that is publicly known, that was known to the other party to whom it was disclosed prior to disclosure, or that is independent and the Confidential Information is not developed for use by the receiving party.

§ 9 Property rights

(1) The software is protected by copyright. Xamine grants the client the non-exclusive right to use the software in accordance with the above provisions for the duration of the contract.
(2) All copyrights and other intellectual or industrial property rights to services developed or provided under this agreement, in particular to software, including source codes, databases, hardware or other material, such as analyses, developments, documentation and reports, as well as preparatory materials, remain exclusively with Xamine or its licensors.
(3) The customer may only use the data and evaluations obtained by means of the software for his own use. This also includes the right to save an analysis result for your own follow-up. Any other use requires a written agreement. These obligations continue to exist even after termination of the contract.

§ 10 Guarantees and liability

(1) Xamine is only liable for damages other than injury to life, limb and health insofar as these are based on intentional or grossly negligent action or culpable breach of a material contractual obligation, compliance with which is essential for the achievement of the purpose of the contract according to Xamine. This applies in particular to the inaccessibility of the contractual partner’s website.
(2) If Xamine negligently violates an essential contractual obligation, the obligation to pay compensation for material damage is limited to the foreseeable, typically occurring damage. The provisions of the Product Liability Act remain unaffected. Xamine is not liable for loss of profit or other financial losses of the contractual partner. Insofar as the contractual liability of Xamine is excluded or limited, this also applies to the personal liability of employees, representatives and vicarious agents.
(3) Unless otherwise stated below, Xamine is liable in accordance with the statutory provisions.
(4) Claims for damages shall lapse – with the exception of claims in tort and under the Product Liability Act – no later than one (1) year from the end of the year in which the claim arose and the contractual partner becomes aware of the circumstances giving rise to the claim without gross negligence.
(5) Strict liability for damages (§ 536a BGB) for defects existing at the time of conclusion of the contract is excluded.
(6) We are not liable for the accuracy of the data and content provided or determined by third parties. In particular, Xamine assumes no liability for the constant availability of its services or for delays due to incomplete data transmission and the like.
(7) The customer is obliged to check all services immediately after receipt of the access data for completeness and, in the case of the software platform, for functionality and to notify Xamine immediately of any defects that occur.
(8) If and to the extent that consulting errors in consulting services are based on the fact that the customer has not, not completely or not in time fulfilled his obligations to cooperate according to section 6, Xamine is not liable. In the event of a dispute, the client shall provide evidence of the complete and timely fulfillment of all obligations to cooperate.
(9) No success of the cooperation resulting from the consultation is owed with regard to the respective task.
(10) In the event of data loss, Xamine is only liable to the extent of the necessary reconstruction effort if backup copies are available.

§ 11 Term and termination

(1) Contracts shall commence at the time specified in the offer.
(2) The contract term is 12 months, unless otherwise contractually agreed.
(3) The contract is automatically extended by a further 12 months if neither party terminates it with a notice period of 4 weeks to the end of the contract term.
(4) The right to terminate the contract for good cause remains unaffected. Good cause shall be deemed to exist in particular if the contractual partner fails to make payments due in accordance with clause 3 of this contract despite a reminder and a grace period.
(5) Notice of termination must be given in writing.
(6) From the time of termination of the contract, Xamine is entitled to irrevocably delete all data stored during the term of the contract.

§ 12 Right of retention

The customer is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.

§ 13 Final provisions

(1) The parties agree that the law of the Federal Republic of Germany shall apply to all legal relationships arising from this contract, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) No verbal ancillary agreements have been made. Declarations previously made by one of the contracting parties in the course of contract negotiations are irrelevant unless they have been included in the contract.
(3) Should individual provisions of this contract be or become invalid, this shall not affect the validity of the remaining provisions.
(4) If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be Munich.
(5) The place of performance is Munich.

From April 15, 2024