General terms and conditions for Mataono
Last updated: 04.03.2022 (Version 1.1)
§ 1 General
(1) With Mataono, Mataono GmbH offers software to support sales and consulting meetings. The product is web-based and can be used both during a personal sales meeting between the customer consultant and the customer and at a distance. The individual functional areas have a modular structure.
§ 2 Definitions
- (Licensed) Software: The web-based software offered by Mataono GmbH under the name "Mataono" and, if applicable, software based on it or functionally connected to it.
- Server hardware: Hardware on which the licensed software is operated.
- System software: The server software necessary to operate the Licensed Software other than the Licensed Software itself.
- Module: Each individual view of the Licensed Software is a module.
§ 3 Subject of the contract
The subject matter of the contract is the granting, free of charge or against payment, of the use of the software "Mataono" by access to the computer center of Mataono GmbH via the Internet for the duration of the contractual relationship.
§ 4 Scope of services
(1) Mataono GmbH provides the platform as it was available when the user registered ("as is"). The platform enables users to create customers and appointments, to conduct consultations and to evaluate and document them. Furthermore, meeting documents can be uploaded to the platform and information can be collected.
(2) Mataono GmbH reserves the right to further develop the platform at any time and, in the course of this, to add or remove features and, at its own reasonable discretion (§ 315 German Civil Code), to change or permanently or temporarily discontinue the platform in whole or in part, taking into account the interests of the User, provided that this does not impair essential contractual obligations of Mataono GmbH arising from the contractual relationship and that this is reasonable for the Users; the procedure according to § 8 applies accordingly. Mataono GmbH reserves the right to offer certain areas, features or services for a fee in the future. In this case, the future obligation to pay costs will be pointed out separately.
(3) Mataono GmbH endeavors to ensure that the usability of the platform is as uninterrupted as possible. However, temporary restrictions or interruptions may occur due to technical malfunctions (such as interruption of the power supply, hardware and software errors, technical problems in the data lines). Mataono GmbH provides the platform with an overall availability of 98.5% on an annual average. The availability is calculated minus the time periods attributable to necessary maintenance. During maintenance work the platform is not available. Otherwise, a claim to the use of the content available on the platform exists only within the scope of the technical and operational possibilities at Mataono GmbH.
(6) Mataono GmbH provides the user with the use of the software at the router exit of the respective data center of Mataono GmbH ("transfer point"). The software remains on the server of Mataono GmbH at all times. Mataono GmbH does not owe the guarantee of the data connection between the transition point and the IT systems of the user. It is the responsibility of the user to create the technical requirements for receiving the software at the transfer point and its use.
(7) Mataono GmbH is not subject to any safekeeping or custody obligations with regard to the data. The user is responsible for a sufficient backup of the data.
§ 5 Start of the usage relationship and availability of the software
(2) In order to verify the information provided, Mataono GmbH sends the user a confirmation e-mail by means of the so-called double opt-in procedure. The data transmitted during the registration process via the registration form will be checked by Mataono GmbH for completeness and plausibility. If, in the opinion of Mataono GmbH, there is a reasonable suspicion of misuse, e.g. that the data transmitted via the registration form is incorrect or untrue, Mataono GmbH will refuse to activate the user profile. If the information is correct from Mataono GmbH's point of view and there are no other concerns from Mataono GmbH's point of view, Mataono GmbH will activate the user profile and send a confirmation email with an activation link to the user's specified email address. By clicking on the activation link, the user accepts the offer to conclude a user contract. After activation, the user profile can be individualized. This does not constitute a claim to the conclusion of a usage contract or the activation of a user profile.
(3) The transfer of use is subject to availability if this depends on third parties and these cause the non-availability.
§ 6 Rights and obligations of the user
(1) The user is responsible for keeping the login data secret. The user name and password for access must be kept secret in such a way that it is impossible for unauthorized persons or third parties to gain knowledge of them. The access data may only be passed on to the respective employee authorized to access the site, who is to be obligated to maintain secrecy accordingly. If the user becomes aware of a misuse of the login data, if there is the possibility or threat of such a misuse, the user has to inform Mataono GmbH immediately. The user is liable for any misuse of the login data; this does not apply if the user is not responsible for the misuse.
(2) The user is responsible for the content posted and must ensure that the applicable laws and other legal provisions are observed when creating and during the operation of the user profile and when conducting consultations. In particular, the user may not post or allow to be posted any data or content, such as text, images, logos, etc., that violates applicable law, infringes third-party intellectual property rights or copyrights or other rights of third parties. No files or content with depictions of violence, pornographic, discriminatory, insulting, racist, defamatory or other illegal content or depictions may be uploaded and/or made publicly accessible or made the content of communication via the platform. Furthermore, it is prohibited to upload files or content on which exclusively or partially third-party company, trademarks or other business signs or other protected signs are displayed, unless the user has the corresponding rights of use and/or exploitation.
(3) The User shall be responsible for ensuring that the applicable data protection provisions are complied with when using the platform and in particular when evaluating and analyzing personal data. In all other respects, the provisions set forth in § 17 shall apply. The User shall be solely responsible for the creation and legal conformity of the content.
§ 7 Rights and obligations of Mataono GmbH
(1) Mataono GmbH sees itself as a technical software and platform service provider in order to make consultations more efficient and empathetic. According to the user contract, Mataono GmbH fulfills its own main service obligations to the users with the provision of the platform with the respective available functionalities in accordance with § 4 with the provision of the respective booked or agreed modules. Mataono GmbH neither gives instructions nor creates content, nor is Mataono GmbH involved in any other way in the consulting or sales process. Therefore, success is not owed.
(2) Mataono GmbH is not obliged to proactively monitor the information and content loaded or transmitted via the platform or to check their accuracy, completeness, up-to-dateness or legality. Nevertheless, Mataono GmbH reserves the right to randomly check the information loaded onto the platform for legal compliance. In case of justified suspicion of violations, Mataono GmbH may take the measures specified in §7.
§ 8 Price
Mataono GmbH currently offers the platform to users free of charge. The platform offer as well as individual services of Mataono GmbH, which are provided via the platform, may be subject to a charge in the future. The user will be informed of this at the latest before the first use of a chargeable additional service. Before the first use of a chargeable additional service, the user must confirm that he has been informed about the chargeability and the amount of the costs and that he agrees to the chargeable use of the additional service.
§ 9 Contract duration and termination options
(1) The contract may be terminated by either party without notice. The right to terminate without notice remains unaffected. The termination can be made by a corresponding mail clearly titled "Termination" to firstname.lastname@example.org. The user profile can be deleted from the website at any time.
(2) Cancellation of the entire contract also means cancellation of all modules related to the contract and booked by the user with Mataono GmbH.
(3) With the deletion of the user profile, all data located on the platform and the user profile will be deactivated and all analyses and documentation received and data stored in the user profile will be irrevocably deleted. Excepted from this is such data that is subject to statutory retention obligations or whose further processing is necessary for Mataono GmbH to fulfill contractual obligations.
(4) The user contract can be terminated by Mataono GmbH at any time with a notice period of one (1) month in text form (e-mail).
Mataono GmbH is entitled to list the User in its portfolio (websites, social media, printed materials) using its company and logo for the purpose of self-promotion.
§ 11 Warranty
(1) The software of Mataono GmbH is carefully developed and checked. According to the state of the art, it is recognized that it is not possible to create software that runs error-free in all possible system constellations. Should the ordered software have obvious defects for the user (e.g., but not limited to, errors in content, graphical errors, manufacturing errors or a non-fulfillment of the agreed purpose of use), the user can inform Mataono GmbH of this.
(2) Mataono GmbH is entitled to bypass or not to correct a possibly occurring error, if this itself can only be eliminated with disproportionate effort and the use of the software is not significantly impaired by this.
(3) Mataono GmbH warrants that the software provides the current scope of services according to §4 as well as is usable for the agreed or expected purpose of use over the entire period of use, as far as this is possible for Mataono GmbH.
§ 12 Liability
(1) Both parties shall be liable to the other party without limitation for damages arising from injury to life, limb or health, for damages caused intentionally or by gross negligence, for damages arising from the breach of a warranty promise made, in accordance with the statutory provisions.
(2) The User shall be liable without limitation, including liability for consequential damages, in accordance with the statutory provisions in the event of infringement of third-party property rights pursuant to § 11 or trade secrets pursuant to § 14.
(3) In all other respects, the parties shall be liable for damage caused by slight negligence only in the event of a breach of a cardinal obligation, i.e. an obligation on the fulfillment of which the other party could reasonably rely. In this case, the liability and the amount shall be limited to the sum of the total order budget.
(4) The strict liability for damages for defects already existing at the time of the contract coming into force according to § 536a para. 1 BGB is excluded.
(5) The above liability provisions shall apply mutatis mutandis to the personal liability of the governing bodies, representatives and employees of the parties.
(6) The User shall be obliged to back up any data before commissioning or using the Software and regularly thereafter, in particular before making any changes to its own hardware or software environment. Insofar as the user is partly to blame due to the violation of contractual obligations or due to changes made to the software by him or a third party or due to improper handling or incorrect operation of the software product, Mataono GmbH is not liable.
§ 13 Infringements of property rights
(1) If a third party asserts claims against the user due to the infringement of property rights by the software licensed by Mataono GmbH and if the use of the licensed software is impaired or prohibited as a result, Mataono GmbH is liable as follows:
- Mataono GmbH shall, at its option and expense, either modify or replace the licensed software in such a way that it does not infringe the property right or essentially corresponds to the agreed functional and performance features in a way that is reasonable for the user, or
- release the user from license fees for the use of the licensed software vis-à-vis the owner of the property right or third parties. If Mataono GmbH does not succeed in doing so under reasonable conditions, Mataono GmbH will inform the user of this and prohibit the user from using the software from a certain point in time. Mataono GmbH must then refund the remuneration paid by the user minus an amount that takes into account the time of use.
(2) Prerequisites for the liability of Mataono GmbH in this context are that the user immediately notifies Mataono GmbH of claims by third parties, does not acknowledge the alleged infringement of property rights and either leaves any dispute, including any out-of-court settlements, to Mataono GmbH or only conducts it in agreement with Mataono GmbH. The reasonable and necessary court and legal costs incurred by the user as a result of the legal defense shall be borne by Mataono GmbH.
(3) If the user discontinues the use of the licensed software for reasons of mitigation of damages or other important reasons, he is obliged to point out to the third party that the discontinuation of use does not imply an acknowledgement of the alleged infringement of property rights.
(4) Insofar as the user is responsible for the infringement of property rights, claims against Mataono GmbH are excluded.
(5) The user is exclusively liable for breaches of duty by the user, in particular in the case of infringement of third-party trademarks, copyrights and rights to a name. The user indemnifies Mataono GmbH from all claims for payment of other companies or third parties on first demand, which are asserted against Mataono GmbH because of a violation of rights or contract by a company. The user assumes all reasonable costs incurred by Mataono GmbH resulting from such an infringement upon first request. This includes in particular the necessary costs of legal defense. This does not apply if the user is not responsible for the infringement. Other claims of Mataono GmbH against the user remain unaffected.
§ 14 Rights of use
(1) Mataono GmbH grants the user the right to use the provided software for the respective agreed period of time.
(2) All rights of use not expressly granted remain with Mataono GmbH or, if different, with the respective author.
(3) In all other respects, the provisions of the Copyright Act shall apply in addition with regard to the rights of use.
(4) Without the written permission of Mataono GmbH, the user is not entitled to use the software beyond the extent described here and in the offer, to make copies of the documentation, the original software or the backup copy; to rent out or otherwise commercially use the software or documentation, if this is not expressly permitted, to sublicense or to make available or pass on to third parties in a manner not expressly permitted; to change, modify or adapt the software or documentation. This prohibition also applies, among other things, to the translation, modification and further use of the product in parts. After the end of the granted period of use, the software may no longer be operated or used. The provisions of copyright law shall also apply here in a supplementary manner.
§ 15 Copyright and reproduction rights
(1) For all materials and information handed over by the user to Mataono GmbH for processing, the user guarantees to have the corresponding rights or rights of use.
(2) The user indemnifies Mataono GmbH from all claims of third parties, including the costs of legal defense, which they assert in this context against Mataono GmbH due to the violation of third party rights.
§ 16 Confidentiality obligation
§ 17 Privacy
(1) The contracting parties undertake to comply with the applicable data protection provisions applicable to them in each case. With regard to personal data, the User is the responsible party within the meaning of data protection law. When using the software, he may only collect, process and use personal data in accordance with the data protection laws. Mataono GmbH guarantees an appropriate level of data protection for all data processing processes carried out in connection with the platform. The details of the processes involved can be found in the data protection information in the currently valid version available at www.mataono.com/privacy.
(2) With regard to the processing of the transmitted and, if applicable, locally stored personal data, the user is the responsible party within the meaning of Art. 4 No. 7 DSGVO. The User is therefore responsible for ensuring that all requirements of the applicable data protection regulations are fully implemented and kept up to date in order to ensure the protection of the rights of the data subjects. In particular, it must be ensured that (1) the existing information obligations towards the customers and own employees are completely fulfilled, (2) the addition of further customers to the user profile takes place on a legal basis and (3) the applicable deletion periods are complied with.
(3) For the conclusion of the contract and the processing of the business relationship, Mataono GmbH collects personal data of the user. This data is processed by Mataono GmbH exclusively for this purpose. They will not be passed on to third parties for advertising purposes.
§ 18 Commissioning of third parties
Mataono GmbH is entitled to commission third parties with the provision of parts or the entire range of its services. This concerns in particular hardware services, such as server provision, their maintenance and data center services. In addition, individual services within the scope of consulting, training, support and the like can be provided by partners or freelancers of Mataono GmbH, who in turn are bound to secrecy and further provisions of this contract.
§ 19 Final provisions
(1) Should any provision of these or included terms and conditions or offer components be or become invalid or incomplete in parts, the validity of the remaining provisions of the agreement shall remain unaffected. The invalid provision shall be replaced by a provision that comes as close as possible to the meaning and economic purpose of the invalid provision and the intention of the parties at the time of conclusion of the agreement in a legally effective manner. The same shall apply to any loopholes in these terms and conditions and the agreements.
(2) The law of the Federal Republic of Germany shall apply - to the exclusion of the UN Convention on Contracts for the International Sale of Goods and international private law.
(3) The exclusive place of jurisdiction for all disputes arising from or in connection with this contract, including the validity of the contract, is the registered office of Mataono GmbH. Mataono GmbH reserves the right to take legal action against the user at his place of business.