APARAVI Software Europe GmbH, Lothstraße 5, 81335 Munich, Germany (hereinafter referred to as "Contractor") provides the APARAVI Data Mastery Platform, a software solution enabling companies to find, protect, control and master unstructured data (hereinafter “APARAVI Platform” or “Software”).
The use of the APARAVI Platform is subject to these APARAVI Platform Terms. The provision of the Software is agreed in one or more Order Forms, which together with these APARAVI Platform Terms constitute the contract between the Customer and the Contractor for the provision of the Software.
The provision of supplemental services such as setup, installation, configuration, and other professional services ("Services") shall, if applicable, be governed by separate Service Terms.
The APARAVI Platform enables the Customer to collect information on unstructured data from various sources, aggregate it centrally and visualize the results. The APARAVI Platform consists of the following components:
The “Data Layer”, consisting of
3.1. Subject to the full payment of the agreed remuneration, the Contractor shall grant the Customer the non-exclusive, non-transferable, worldwide right to use the Software for the intended use for the duration of the contract. The Customer may only use the Software within the scope of the contractual provisions. The Customer may use the Software only for its own purposes. Use for own purposes shall include the intended use of the Software for general business purposes of the Customer and the processing of the Customer's data. This does not include the use of the Software for and/or on behalf of third parties, for example as a service provider or any other use for and/or by third parties. The Customer shall be entitled to have the software used by its own employees or by third parties for its own purposes.
3.2. The Customer shall be responsible for the use of the Software by its users and for all damage caused by negligent or intentional breaches of duty by its users.
3.3. The Customer shall not receive any rights to the source code of the Software.
3.4. The Customer shall have an exclusive right of use with respect to the specific analyses and work results that are created using the Software based on the Customer's data.
3.5. Unless otherwise agreed, all rights to Software and services provided by the Contractor or developed under this Agreement shall belong solely to the Contractor. All rights to any kind of modification, development or improvement of the products or services made by the Customer shall also be the exclusive property of the Contractor.
3.6. The Software may contain open source software components. The use of these components is exclusively subject to the corresponding terms of use of the open-source software components which are transmitted and/or referenced within the scope of the open source software components. No provision of these APARAVI Platform Terms shall affect the rights or obligations of Customer under the corresponding terms of use of the open source software components. In the event of contradictions or conflicting provisions of license terms of the open source software and the provisions of these APARAVI Platform Terms, the license terms of the open source software shall take precedence.
3.7. The right to use the Software also extends to fixes, patches, developments and updates which the Contractor makes available to the Customer. The right to updates does not include the right to a right to use new/additional products and functionalities which are provided as a separate product/module.
3.8. The Contractor shall provide the Software and documentation of the software in electronic form.
3.9. Unless otherwise agreed or prescribed by mandatory law or applicable open source software terms of use, the Customer shall not be entitled
• to copy the Software beyond what is necessary for use in accordance with the contract, neither in whole nor in part;
• to modify, correct, adapt, translate, translate, improve the Software or otherwise make derived developments to the Software;
• to rent, lend, sell, license, transfer or otherwise make the Software available to third parties;
• to reverse engineer, decompile, disassemble or otherwise attempt to decipher the source code of the Software, either in whole or in part;
• circumvent or violate security devices or protection mechanisms contained in or used for the Software;
• to take measures that are suitable to cause damage to the Software or the servers of Contractor;
• remove, delete, erase, obliterate, modify, conceal, translate, combine, add to or otherwise alter any trademark, documentation, warranty, disclaimer of liability or other rights, such as intellectual property, signs, notices, markings or serial numbers, which are associated with the Software or documentation;
• to use the Software in a manner that violates applicable law and/or the rights of third parties;
• to use the Software for the purposes of benchmarking or competitive analysis of the Software, for the development, use or provision of a competing software product or competing services or for any other purpose that is detrimental to Contractor; and/or
• to use the Software for or in connection with the planning, construction, maintenance, operation or use of hazardous environments, systems or applications or other safety-critical applications or otherwise to use the Software in a manner that could lead to physical injury or serious damage to property.
3.10. At the Contractor's request, the Customer shall enable the Contractor to verify the proper use of the Software, in particular whether the Customer is using the Software qualitatively and quantitatively within the scope of the right of use acquired by it. To this end, the Customer shall provide the Contractor with information, allow the Contractor to inspect relevant documents and records, and enable the Contractor or an expert appointed by the Contractor and acceptable to the Customer to inspect the hardware and software environment used. If the inspection reveals a not merely insignificant exceeding of the acquired right of use or any other not merely insignificant non-contractual use, the Customer shall bear the costs of the inspection, otherwise the Contractor shall bear the costs. If the Customer uses the Software to an extent that exceeds the acquired rights of use qualitatively (with regard to the type of permitted use) or quantitatively (with regard to the number of collectors and users or devices), the Customer shall immediately acquire the rights of use necessary for the permitted use.
Obligations of the Customer
4.1. The Customer shall support the Contractor in the provision of the contractual services to a reasonable extent. The Customer shall provide in advance, without being requested to do so, all cooperation services, information, data, files, materials which are necessary for the Contractor to fulfill its contractual obligations. If the Customer fails to cooperate sufficiently and/or causes delay, the Contractor shall not be obliged to fulfill the contractual obligations as long and as far as the Contractor is prevented from fulfilling the contractual obligations due to insufficient and/or delayed cooperation of the Customer. The Contractor shall inform the Customer of its insufficient or delayed cooperation and set a reasonable deadline for subsequent performance. If the Customer nevertheless fails to fulfill his obligations to cooperate, any resulting increases in remuneration, additional expenses (e.g. additional work, cancellation costs, travel expenses) and postponements of deadlines that cannot be avoided by the Contractor shall be borne by the Customer. After fruitless expiration of the grace period, the affected software or service shall be deemed to have been provided or rendered.
4.2. The Customer shall be responsible for (i) adequate security processes, tools and controls for systems and networks interacting with the Software, (ii) maintaining alternative processes in case of lack of availability of the Software, (iii) determining whether the technical and organizational measures of data protection and data security provided by Contractor meet Customer's specific requirements; (iv) adequate internal training of users and provision of internal technical support; and (v) proper backup of all programs and data located on its system environment and of all data transferred to the Software and of all data and work results created with the Software upon commencement of use of the Software and at reasonable regular intervals thereafter.
Warranties
5.1. Contractor warrants that the Software shall be provided by Contractor free of defects and, if used as intended, shall essentially comply with the specifications stated in the documentation.
5.2. Contractor warrants that the Customer’s use of the Software in compliance with these APARAVI Platform Terms does not infringe any third-party intellectual property rights.
5.3. Technical data, specifications and performance data in public statements, in particular in advertising material, do not in any way represent contractual quality specifications for the Software.
5.4. In the event of defects, the Customer's claims for defects are initially limited to subsequent performance. The Customer shall notify the Contractor in writing of any defects that occur with a description of the defect and request that the defect be remedied. In the event of proven defects, the Contractor shall provide warranty by means of subsequent performance in such a way that the Contractor makes the Software available or provides it again in a defect-free condition or rectifies the defect.
5.5. If the subsequent performance finally fails after two attempts at subsequent performance, the Customer may terminate the affected contract or reduce the remuneration appropriately. The Contractor shall pay damages or compensation for futile expenditure due to a defect within the limits of liability as set out in these APARAVI Platform Terms.
6.1. Collector and Aggregator shall be made available for download. The presentation layer, the front end or user interface, is provided by the Contractor as Software as a Service (SaaS) for browser-based use.
6.2. The operating systems, databases and data sources supported for the installation and the supported browsers can be found here: www.aparavi.com/company/support. The Customer shall provide a corresponding system environment for the operation of the Software.
6.3. Unless otherwise agreed, Software shall not be subject to separate acceptance by the Customer but shall be deemed accepted as soon as the Software has been made available to the Customer. Software and other work results shall be deemed to have been handed over as soon as they have been made available to the Customer. If acceptance has been contractually agreed and the Customer has not complied with the time or test plan for acceptance or if there is no such test plan or time limit for tests and acceptance, Software shall be deemed to have been accepted ten working days after handover.
6.4. The Contractor shall be entitled to use subcontractors or other vicarious agents (collectively referred to as "Subcontractors") to perform its contractual obligations. The Contractor shall ensure that subcontractors are bound by obligations regarding confidentiality and data protection in accordance with these APARAVI Platform Terms. The engagement of Subcontractors shall not affect the Contractor's contractual obligations to the Customer. The Contractor shall be liable for any poor performance of a subcontractor as for its own fault.
7. Payment Terms
Unless otherwise agreed, the Software shall be invoiced annually in advance. The Customer shall pay invoices within 30 days of the invoice date without discount or other deductions. Unless otherwise agreed, the indication of an order number or purchase order number on the invoice is not a prerequisite for the payment obligation. In the event of late payment, interest on arrears shall be due at the statutory rate.
The prices quoted do not include VAT, sales tax or other taxes. These will be invoiced separately to the Customer, if applicable.
8.1. The Contractor shall only be liable for slight negligence, both for its own conduct and for attributed conduct, insofar as essential contractual obligations (cardinal obligations) are violated. In this case the liability is limited to the contract-typical and foreseeable damage. Essential contractual obligations are those obligations whose breach jeopardizes the achievement of the purpose of the contract, whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the Customer regularly relies.
8.2. For the aforementioned cases of limited liability, the amount of such liability shall additionally be limited for each case of damage to the amount of the remuneration to be paid annually by the Customer (the remuneration that was paid or would have been paid by the Customer in the last 12 months prior to the occurrence of the damage or, if the contract had not yet been running for 12 months when the damage occurred, the average of the previous remuneration per month x12) and to twice the remuneration to be paid annually by the Customer for all cases of damage occurring in a contractual year.
8.3. The Contractor shall only be liable for indirect and consequential damages as well as for lost profits, additional personnel costs, useless expenses and omitted savings, etc. in the event of intent and gross negligence.
8.4. The limitations of liability shall not apply to claims due to intent and gross negligence, in the event of personal injury, in the event of fraudulent intent, insofar as the Product Liability Act applies, as well as for damages which fall within the scope of protection of an independent guarantee, quality or durability guarantee given by the Contractor, insofar as nothing to the contrary results from the respective guarantee agreement.
8.5. If the Customer violates its obligation to properly back up data, the Contractor's liability for loss of data shall be limited to the amount of the damage that would have occurred even if the Customer had properly and regularly backed up the data.
9.1. Each of the Parties undertakes to treat as confidential all information received within the framework of the contractual cooperation which (a) is marked as "confidential" or "secret" or with an equivalent reference or is verbally designated as confidential; (b) is to be regarded as confidential due to its content; or (c) is derived from confidential information which has been made available; exclusively for the purposes of the contractual cooperation, and to protect it from being disclosed to unauthorized third parties. This confidentiality obligation shall be imposed on all persons entrusted with the execution of this Agreement.
9.2. Excluded from the confidentiality obligation is information which (a) is publicly accessible or subsequently became publicly accessible or was already known to the other party at the time of the conclusion of the contract; (b) was independently and autonomously developed by the other party; (c) was disclosed to the other party by a third party who is not subject to a confidentiality obligation, or (d) must be disclosed due to statutory provisions or official or court orders (in this case, the party concerned shall be informed thereof without undue delay).
10.1. In the context of the provisioning of the Software the Contractor is not processing personal data on behalf and on instruction of the Customer. The Software components Collector and Aggregator are installed at the Customer (behind the Customer's firewall) and the Contractor has no access to the information processed here. The Presentation Layer, the cloud- and browser-based front-end or user interface, allows the Customer to view the indexed search results in the Aggregator, but it does not provide access to file contents, only to the indexed search results. The Contractor also has no access to the indexed search results.
10.2. The Contractor shall process the personal data of the contact persons at the Customer (surname, first name, contact details) for the performance of the contract (Art. 6 para. 1 lit. b) GDPR). With regard to the relevant data subject rights and other information obligations, reference is made to the Privacy Policy on the Contractor's website.
11. Term
11.1. The initial term of the respective Order Form shall be agreed in the respective Order Form. The term of an Order Form shall be extended in each case by the duration of the initial term, unless the respective Order Form is terminated in writing with a notice period of two calendar months to the end of the then respective term.
11.2. Order Forms may be terminated by either party at any time in the event of a material breach of contract by the other party, unless such breach is cured within 30 days. This period shall commence from the date of delivery of written notice of the material breach.
11.3. Each party may terminate an Order Form at any time without notice if the other party goes into liquidation or an insolvency petition is filed and not withdrawn within four weeks from the filing of the petition.
12.1. This contract is subject to German law. In the event of any conflicts arising from this contract, the parties undertake to first reach an amicable settlement. Should this not be possible, the parties agree already now on Munich as general place of jurisdiction.
12.2. The Contractor shall have the right to publicly state the fact that the Customer uses the Software or is its customer and to use the Customer's name and logo for this purpose in its marketing materials, including on the Internet on its website and/or on its social media pages. Any other use of the Customer's name or logo shall require the Customer's prior consent.
12.3. All notices under this Agreement shall be in writing and shall become effective upon first delivery.
12.4. The Contractor may make changes to these APARAVI Platform Terms if these become necessary due to changed circumstances, for example in the event of significant changes in legislation or case law, the relevant market and business environment or due to technical developments and if the changes are reasonable for the Customer. The Contractor shall inform the Customer of the changes in electronic form within a reasonable period of time, at least one month, before the changes come into force. The Customer shall be entitled to object to such changes within 14 days after receipt of the change notification. In the event of an objection by the Customer, the Contractor shall have the right to terminate the contractual relationship extraordinarily without observing a notice period. If the Customer does not object, its consent shall be deemed to have been granted after expiry of the above-mentioned periods. The Contractor shall expressly point out the duration of the period and the significance of its expiry without result when announcing the changes to the APARAVI Platform Terms.
This English translation is for convenience only. In case of a discrepancy between the German and the English version, the German version shall prevail.