GENERAL TERMS AND CONDITIONS (SAAS) TARGOMO CASAFARI
GMBH
Version: November 7, 2023
1. Scope of Application and General Provisions
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) apply to the provision and use of Targomo technology as Software-as-a-Service (SaaS) (hereinafter referred to as “Software”, substantiated in Section 3.3) by UNA 525. Equity Management GmbH (in the future operating as Targomo CASAFARI GmbH), registered in the commercial register (Handelsregister) of the district court of Berlin (Charlottenburg) under HRB 244186 (hereinafter referred to as “Targomo”). The Contractual Services offered by Targomo are addressed exclusively to companies or persons that legally qualify as entrepreneurs (Unternehmer) pursuant to Section 14 German Civil Code (Bürgerliches Gesetzbuch, BGB) (hereinafter referred to as “Customer”, together with Targomo the “Parties”).
1.2 Deviations from these GTC shall only be considered agreed if they have expressly been confirmed in writing by Targomo. In particular, the mere omission of an objection by Targomo against any general terms and conditions of the Customer shall not cause such terms and conditions to be considered agreed. This shall also apply if Targomo performs Services unconditionally upon knowledge of opposing terms and conditions of the Customer or terms and conditions diverging from these GTC.
1.3 For important reasons, in particular in the event of changes to statutory provisions, judicial precedences, the Software or market conditions Targomo may notify the Customer of amendments to these GTC. The amended GTC shall be deemed to have been agreed if the Customer has not objected to the amendment within one month upon receipt of the notification and Targomo has explicitly notified the Customer of this consequence. Regardless of the foregoing, changes to the service content agreed with the Customer require the express consent of the Customer.
2. Conclusion of Contract
A contract (the “Contract”) between the Parties is formed by either
2.1 the mutual signing of a separate Price Sheet in case of paper form conclusion or
2.2 in case of online conclusion in the course of the ordering process. There, the Customer accepts these GTC by checking the respective box. By clicking on the button “[Register as a Payer]” the Customer accepts Targomo’s offer to conclude a contract including these GTC. Within the online ordering process, a contract can only be concluded with the full inclusion of these GTC.
3. Scope of Services
3.1 Targomo offers the following Services:
a) “Targomo API”: An API (Application Programming Interface) allows users to access Targomo’s routing, analysis and visualization Services.
b) “Targomo Loop”: Targomo Loop is a web-based location intelligence tool that allows users to manage and optimize locations based on spatial analysis and visualization.
c) And furthermore, if applicable, other Services described on Targomo’s website or Price Sheet.
(Targomo Loop and API as well as, if applicable, other Services described on Targomo’s website or Price Sheet – in the case of agreed Individual Services pursuant to Sec. 5 each in the adapted version – together the “Services” and each a “Service”)
3.2 The Customer is aware that all results obtained while using the Services are based on third party data, including OpenStreetMap (the “Third Party Data”). The quality of the results is directly related to the quality of the Third Party Data. Targomo has no influence on the quality or timeliness of the Third Party Data.
3.3 The scope of services of the Contract between the Customer and Targomo shall be based on the Services selected during the ordering process and, within the respective Service, on the respective Service Package selected and described in the Price Sheet (the “Service Package”). The Services owed by Targomo according to the contractual scope of Services shall hereinafter be referred to as “Contractual Services”; the term “Software” shall only include those parts of the Software which are covered by the contractual scope of services.
3.4 The Services pursuant to Section 3.1 and described in Section 3.1 and 3.2, as well as other Services described on Targomo’s website or Price Sheet acc. to Section 3.1. c), are hereinafter referred to as the “Contract Purpose”.
4. Use of the Software by the Customer
4.1 The Customer may only use the access to the Software himself and for the contractually agreed purpose. The Customer undertakes to take appropriate security precautions to ensure that access to the Software is not used by unauthorized persons. Such security precautions include in particular the use of a secure password.
4.2 The Software is used by means of telecommunications via the browser or another suitable application.
5. Software Adaptation
5.1 If agreed between the Parties, Targomo shall, in addition to providing the Services, provide services to adapt the Software to the individual needs and wishes of the Customer (“Individual Services”). An agreement on this shall be reached by selecting the corresponding service contents in the course of the conclusion of contract (acc. to Section 2). The provisions on Software Operation and Changes (Section 7) shall remain unaffected.
5.2 Targomo shall provide the Individual Services in accordance with the provisions of the Price Sheet and shall receive the remuneration provided for in the Price Sheet in return. If the Price Sheet does not contain any provisions on the time limit for the provision of the Individual Services, the Parties shall enter into a separate agreement to this effect.
5.3 The Customer is obliged to provide all cooperation required for the Individual Services (e.g. communication of technical information on the Customer’s IT systems).
6. Availability
6.1 Targomo shall not be responsible for establishing and maintaining the data link between the Customer’s IT systems and the Transfer Point. “Transfer Point” shall mean the router exit of the Targomo data centre or its subcontractor’s data centre through whose server the Software is operated. Targomo is not responsible for malfunctions beyond the Transfer Point. The Customer is responsible for the procurement and maintenance of the necessary hardware and connections to public telecommunications networks. The costs of setting up the online connection and maintaining it on the Customer’s side shall be borne by the Customer. Targomo is not liable for the security, confidentiality or integrity of the data communication which is conducted via third party communication networks. Targomo is also not liable for malfunctions in data transmission caused by technical errors or configuration problems on the part of the Customer.
6.2 The Software availability owed by Targomo depends on the Service Package chosen by the Customer and is specified in the Price Sheet. If the Price Sheet does not contain any regulations, the following applies: If the Customer has chosen a free Service Package, Targomo does not owe availability. If the Customer has chosen a chargeable Service Package, Targomo shall owe an availability of at least 99% in the Contract’s yearly average.
6.3 The Customer is not entitled to a continuous, uninterrupted, complete or trouble-free usability of the Software and availability of the Data. Targomo only owes the suitability of the Software for the purpose within the scope of Availability as set out in Section 6.2. “Availability” is the substantial technical usability and accessibility of the main features of the Software and the Data. Times during which the Software and/or the Data is not available due to an error or other reasons are considered “Downtime”.
6.4 For determining the Availability such Downtime is not taken into account
a) in which the Software or the Data cannot be reached due to technical or other problems for which Targomo is not responsible (force majeure, third-party fault, errors in the IT systems of the Customer or the third party service providers acting on his behalf, etc.);
b) which is due to a breach of the Customer’s obligation to cooperate, in particular to a delayed or incomplete transmission of an error message; or
c) which is used for normal maintenance work of up to five hours a month.
7. Software Operation and Changes
7.1 Targomo intends the Software to always correspond to the latest state of technology. Targomo shall be entitled to regularly carry out or introduce updates, new versions or upgrades of the Software (hereinafter referred to uniformly as “Updates”) in order to adapt the Software to new technical or commercial requirements, to implement new functions, or to make changes to existing functionalities in order to improve the Software.
7.2 If and insofar as the suitability of the Software for the Contract Purpose is materially impaired by an Update (such an Update a “Material Change”), Targomo shall inform the Customer in text form of the introduction of the Material Change at least four weeks prior to it becoming effective (a “Change Notice”). If the Customer does not object to the Material Change within two weeks after receipt of the Change Notice in text form (the “Objection Notice”), the Material Change shall become an integral component of the Contract. With each Change Notice, Targomo shall inform the Customer of the Customer’s rights pursuant to Section 7.27.2, in particular: (i) the objection right, (ii) the period foreseen for objection and (iii) the legal consequences of not declaring an objection to the Material Change in time.
7.3 If the Customer objects to the Material Change, Targomo shall further provide the Software for use to the Customer without the Material Change unless this is impossible for technical or organizational reasons or Targomo cannot reasonably be expected to do so. In the latter case, the Customer is entitled to terminate the Contract extraordinarily for good cause within four weeks (the “Exercise Period”). If the Customer does not make use of its termination right, the Material Change shall become an integral component of the Contract. The Exercise Period shall commence as soon as Targomo has informed the Customer in text form of (i) the non-continuability of the Contract without the Material Change, (ii) the Customer’s extraordinary termination right and (iii) the legal consequences of the expiry of the Exercise Period.
8. Compensation and Terms of Payment
8.1 Compensation for the use of the Software by the Customer and the respective terms of payment shall be based
a) In case of online conclusion on the Price Sheet available at www.targomo.com/products/location-analytics-targomo-loop-pricing for TargomoLOOP, or www.targomo.com/developers/pricing/ for TargomoAPI. The Contract is governed by the current version of the Price Sheet at the time the Contract is concluded, including any changes permitted under these GTC.
b) In case of paper form conclusion the compensation for the use of the Software by the Customer and the respective terms of payment shall be based on the Price Sheet handed out at the conclusion of the Contract, including any changes permissible under these GTC.
(The applicable Price Sheet the “Price Sheet”).
8.2 All fees and prices indicated by Targomo are net prices without VAT. The compensation is to be paid monthly in advance, unless otherwise agreed.
9. Warranty for Material and Legal Defects
9.1 Targomo warrants that the Software corresponds to the agreed scope of Services when used in accordance with the Contract and that it is not encumbered with material or legal defects (“Defects”) which more than insignificantly impair the suitability of the Software for the Contract Purpose. Immaterial deviations shall not be considered as Defects.
9.2 The Customer shall be obliged to communicate any Defect to Targomo immediately upon appearance. Targomo shall remedy any duly notified Defects appearing in the Software within a reasonable period of time.
9.3 Defects of Third Party Data are not subject to Targomo’s warranty according to Section 9.1 unless they result from faulty behaviour on the part of Targomo.
9.4 Targomo does not guarantee the objective accuracy of the results obtained by using the Services. The Services can only produce approximate values which the Customer must supplement with his own preferences when making decisions. This does not affect the warranty contained in Section 9.1.
10. Liability
10.1 The no-fault based liability pursuant to Section 536a(1) German Civil Code for Defects in the Software existing at the time of contracting shall be excluded, unless the Defect relates to a feature of the Software essential for the Contract Purpose
10.2 Targomo warrants for damages if arising from (i) willful misconduct or gross negligence of Targomo or its legal representatives or agents (gesetzlicher Vertreter oder Erfüllungsgehilfe), (ii) negligent violation of a material contractual duty (Kardinalpflichten) by Targomo or its legal representatives or agents, however, limited to typical damages which are foreseeable at the time of the conclusion of the Contract or (iii) negligence of Targomo or its legal representatives or agents in a way causing injury to life, body or health, or (iv) any compulsory statutory liability of Targomo or its legal representatives or agents. Material contractual duties (Kardinalpflichten) are duties which form the fundamental basis of the Contract, which were decisive for conclusion of the contract and on the fulfillment of which the Customer may rely on.
10.3 Any contributory negligence on the part of the Customer shall be taken into account. In particular, Targomo shall only be liable for the recovery of data if the Customer has taken all necessary and reasonable data backup precautions and ensured that the data can be recovered at reasonable cost from data material kept in machine-readable form.
10.4 This liability arrangement is conclusive. It shall apply with respect to all damage compensation claims, irrespective of their legal ground, particularly also with respect to pre-contractual claims or collateral contractual claims. This liability arrangement shall also apply in favor of legal representatives and agents of Targomo if claims are asserted directly against them.
10.5 The Customer is obliged to immediately notify any damage pursuant to the above liability provisions to Targomo in text form or to have such damage documented by Targomo, so that Targomo is informed as early as possible and can possibly still mitigate the damage together with the Customer.
11. Non-contractual Use, Damages
11.1 The Customer is obliged to immediately notify Targomo of any unauthorized access to the contractual service in his area of responsibility.
11.2 For each case in which a Contractual Service is used without authorization under the responsibility of the Customer, the Customer shall pay damages in the amount of the compensation that would have been due for the contractual use under the minimum contract period applicable to this Service. The Customer reserves the right to prove that the Customer is not responsible for the unauthorized use or that there is no damage or considerably less damage.
11.3 Targomo remains entitled to claim further damages.
12. Limitation of Claims
12.1 Claims of the Customer based on the breach of any duty not consisting of a Defect become time-barred, except in the event of intention or gross negligence, within one year from beginning of the limitation period. This shall not apply if the damage in question incurred by the Customer consists in personal injury. Claims for personal injury become statute-barred within the statutory limitation period.
12.2 Any rescission of contract or reduction of payments shall be invalid if the claim to performance or subsequent performance of the Customer has become time-barred.
13. Copyright and License
13.1 The Software is protected by copyright. Targomo is the sole holder of all intellectual and commercial property rights. Targomo represents that the general operation of the Software is permitted by law, does not violate any statutes, regulations or directives and, in particular, does not infringe on any third party rights. Targomo undertakes to indemnify the Customer against legitimate third party claims due to the operation of the Software and to compensate the Customer for any damage incurred in this context (including reasonable costs of legal defense) in accordance with Section 10.
13.2 The Customer shall have the non-transferrable, non-exclusive right, temporally restricted to the term of the Contract, to use the Services (possibly including a Software adaptation carried out in accordance with Section 5) via the Internet for the contractual purpose agreed under the Contract. The Customer shall not obtain any rights beyond this. In particular, the Customer is not entitled to have the Software, data from Targomo and Third Party Data used by third Parties, to make them accessible to third Parties or to use them in any other way outside the purpose of the Contract.
13.3 The Customer is obliged to comply with any licensing conditions and naming obligations with regard to Third Party Data when integrating and presenting the Services in the Customer’s own offers. Information on the Third Party Data used under the Software is available at www.targomo.com/developers/resources/attribution/; Targomo is not responsible for the completeness of the list of Third Party Data.
13.4 Whether the Customer is obliged to designate Targomo as the service provider for the integration and presentation of the Services in the Customer’s own offers depends on the Service Package selected by the Customer and is specified in the Price Sheet. If the Price Sheet does not contain any information in this respect, the Customer is obliged to state the general attribution communicated at www.targomo.com/developers/resources/attribution/.
14. Set-off, Reduction, Retention
14.1 The Customer shall only have a right of set-off, reduction and/or retention against Targomo if its counterclaim has been legally established, undisputed or acknowledged by Targomo.
14.2 Furthermore, the Customer may only exercise a right of retention if the counterclaim is based on the same contractual relationship.
14.3 The Customer’s right to reclaim remuneration not actually owed shall remain unaffected by the limitation of Section 14.1.
15. Term and Termination
15.1 The term of the Contract and terminability shall be governed by the provisions of the Price Sheet. If the Price Sheet does not contain any information on the term or terminability, the Contract shall run for an indefinite period and may be terminated by either party with one month’s notice to the end of the quarter.
15.2 The Parties’ statutory right to extraordinary termination remains unaffected. An important reason is present for the other contracting party in particular if:
a) one of the Parties seriously breaches its obligations under the Contract and the other Party can no longer reasonably be expected to abide by the Contract;
b) the Customer is more than two (2) months in arrears with the payment of due fees or other remuneration, even after the expiry of a reasonable period set by Targomo to remedy the situation;
c) insolvency proceedings are applied for, instituted or dismissed in respect of all or part of the assets of a Party;
d) one of the Parties has a reason for insolvency within the meaning of Sections 17-19 Insolvency Statute (Insolvenzordnung, InsO);
e) the financial circumstances of a Party deteriorate to such an extent that proper performance of the Contract can no longer be expected, even if there is no reason for insolvency within the meaning of Sections 17-19 InsO.
15.3 Each termination must be made by declaration in text form.
15.4 The Customer undertakes to back up its databases in good time before termination of the Contract (e.g. by downloading). The Customer is no longer able to access these databases after termination of the Contract.
16. Secrecy
16.1 The Parties undertake to maintain temporally unlimited secrecy regarding all confidential information which they will obtain or have already obtained in the context of the contractual relation and not to disclose or otherwise use such information, unless necessary to perform the Contract. Confidential information are all information and documents of the Parties labeled as confidential or to be considered confidential based on the circumstances, particularly information concerning operating routines, business relations, further business or trade secrets, know-how, all work results as well as the business model of Targomo.
16.2 Exempt from this obligation shall be confidential information:
a) that can be demonstrated to have already been known to the other Party upon initiation of the Contract or become known thereafter through third Parties without any breach of a confidentiality agreement, of statutory provisions, or of administrative orders;
b) that was known to the general public, unless this was due to a breach of this Contract;
c) that had to be disclosed based on statutory obligations on the order of a court or authority. As permissible and feasible, the Party obliged to disclosure shall inform the other Party in such event in advance, providing it with the opportunity to take action against the disclosure.
16.3 Any disclosure of confidential information to third Parties shall require the express written approval of the other Party, unless otherwise expressly agreed.
16.4 The Parties shall ensure through suitable contractual arrangements that the employees and contractors working for them shall also, without temporal restriction, refrain from individual use or disclosure of confidential information. The Parties shall only disclose to employees or contractors confidential information to the extent such employees or contractors need to know the information for the fulfillment of the Contract.
16.5 The Customer consents for Targomo to disclose the collaboration between Targomo and the Customer for marketing purposes and in this connection also use the company logo of the Customer. The Customer may revoke this consent pursuant to this Section 16.4 at any time by declaration in text form with effect for the future.
17. Data Protection
17.1 Targomo treats the Customer’s personal data in accordance with data protection standards and specifications.
17.2 Targomo only acts as data processor within the meaning of Art. 28 GDPR vis-à-vis such customers that feed personal data (personenbezogene Daten) of their customers into the Software. The Customer is obliged to notify Targomo of its intent to feed personal data of their customers into the Software; in this case, the Parties are obliged to conclude a separate data processing agreement.
18. Final Provisions
18.1 Should individual provisions of the Contract of use or other contractual documents be or become invalid or unenforceable in whole or in part or should they not contain a necessary provision, this shall not affect the validity of the remaining provisions. In place of the invalid or unenforceable provision or to fill the loophole, the legally admissible provision shall be deemed to have been agreed retroactively which corresponds as closely as possible to what the Parties would have wished or would have been agreed in spirit and purpose by the Parties if they had considered the invalidity or unenforceability of the provision in question or the loophole.
18.2 If these GTC refer to a written form or notification, the sending of an e-mail shall also suffice respectively.
18.3 The Contract and the other contract documents are subject to the law of the Federal Republic of Germany to the exclusion of the German conflict of laws principles and the UN Convention on Contracts for the International Sale of Goods.
18.4 For all disputes arising from or in connection with the Contract or the GTC, including their validity, the District Court of Potsdam (Landgericht Potsdam) shall have exclusive jurisdiction to the extent permitted by law.