Terms and Conditions

PREAMBLE

Veact GmbH (hereinafter referred to as “Veact”) operates as a service provider offering its customers (hereinafter referred to as “Customer”) a range of services related to after-sales activities and associated areas. This includes, in particular, the following product and service groups: (1) Provision of IT interfaces (DataHub), in particular for applications from cooperation partners, (2) software license for the Veact platforms (in particular ASMC, Veact Analytics Platform), and (3) campaigns via third-party providers. The basis for ordering the aforementioned services and thus for the conclusion of a contract between Veact and you as the customer is Veact’s General Terms and Conditions (hereinafter referred to as “GTC”), which you acknowledge and confirm by requesting services via the order form or via the customer portal. You can view the GTC here and print them out if necessary. Of course, the GTC are also available for viewing and downloading for your records at any time.

1. Scope and amendments to the GTC

1.1. Veact provides all services in accordance with the following provisions as integral parts of the contract. These form the basis for the provision of services by Veact. The following order of application applies:

1.1.1. the service request (order form or customer portal);

1.1.2. the product and price information;

1.1.3 the service description (if available);

1.1.4. the individual order processing agreement (“AVV”) already existing between the parties, if available and if no consent to the AVV attached at veact.com/dpa has been given;

1.1.5. the provisions of the attached and incorporated AVV on data processing in accordance with Art. 28 (2) GDPR;

1.1.6. the provisions of these GTC.

1.2. In the event of contradictions between different parts of the contract, the parts preceding in the above order shall take precedence over the parts following in this order.

1.3. In addition to these GTC, the current GTC attached as an appendix shall apply and shall become effective upon call-off of services. If an individual GTC has already been agreed between the parties, it shall remain valid until the customer agrees to the current attached version or the continued existence of the already individually negotiated GTC is agreed. The customer retains the right to agree an individual GTC at any time.

1.4. Veact reserves the right to amend these General Terms and Conditions, provided that this does not affect essential provisions of the contractual relationship and is necessary to adapt to developments that were not foreseeable at the time the contract was concluded and whose non-consideration would significantly impair the balance of the contractual relationship. Essential provisions are, for example, those relating to the type and scope of the contractually agreed services and the term of the contract, including the provisions on termination. In addition, adjustments or additions may be made to these General Terms and Conditions if this is necessary to eliminate difficulties in the performance of the contract due to loopholes that arose after the conclusion of the contract. This may be the case in particular if there is a change in case law and one or more clauses of these General Terms and Conditions are affected by this. Intended changes to these General Terms and Conditions shall be communicated to the customer in writing (by post, fax, or email) at least six weeks before they take effect.

1.4.1. In the event of significant changes within the meaning of 1.4., the customer shall have the right to object within a period of six weeks from receipt of the notification of change. The objection must be made in writing or in text form. The objection shall be deemed to have been made in due time if it is received by Veact within the objection period. If the customer objects to the significant change to the General Terms and Conditions, the previously valid General Terms and Conditions shall continue to apply without changes. Express reference is made to sections 9.4.2.1. and 9.4.2.2.

1.4.2. If the customer does not terminate or object within six weeks of receiving the notification of change, the changes shall become an effective part of the contract for the provision of services by Veact upon expiry of the deadline. The customer shall be specifically informed of this consequence in the notification of change.

2. Services provided by VEACT

2.1. The type and scope of the services provided by Veact are based on the specific agreements made between the parties regarding the properties, features, and performance characteristics of the services and products, as specified in particular in the service request completed by the customer (via form or customer portal). Otherwise, the type and scope of the contractual services are determined by the service description, any additional terms and conditions that may have been agreed, and these General Terms and Conditions.

2.2. Veact is entitled to change and adapt its services, in particular in the event of technological developments and changes in relevant framework conditions for IT security, in the interest of the customer, provided that the purpose of the contract is not or only insignificantly impaired for the customer. Veact shall notify the customer at least six weeks before the significant change. Express reference is made to clause 9.4.2.2. If the customer does not terminate the contract within six weeks of receipt of the notification of change, the changes shall become an effective part of the contract upon expiry of the deadline. The customer shall be specifically informed of this consequence in the notification of change.

3. Subcontractors

3.1. Veact is entitled to use subcontractors who are technically suitable and capable of performing the services. Veact shall provide the customer with a list of the subcontractors used by electronic means when the services are first called off and in the event of any change of subcontractors.

3.2. Veact shall be liable for subcontractors used in accordance with the statutory provisions.

4. Prices, terms of payment

4.1. The prices specified in the service request (via form or customer portal) or in Veact’s price list shall apply to the provision of services. All prices stated therein are net prices in euros.

4.2. Annual prices are payable in full in advance for the entire calendar year, beginning on the date on which Veact provides the services. Other prices, in particular usage-based prices, are payable after Veact has provided the service.

4.3. Veact is entitled to adjust the agreed prices for ongoing contractual relationships at its reasonable discretion in accordance with § 315 BGB (German Civil Code) if costs relevant to the provision of services change. The adjustment shall be based on the percentage change in the consumer price index for Germany (base year 2020) published by the Federal Statistical Office between the index figure for the month in which the last price was set (“base index”) and the most recent index figure available at the time of the adjustment. The price shall increase or decrease in accordance with the ratio of the index figures. The price adjustment shall not exceed the extent to which the aforementioned index has changed. An adjustment during the first four months after conclusion of the contract is excluded.

4.4. Veact shall notify the customer of the intended price adjustment in writing at least six weeks before it takes effect, clearly stating the basis for calculation and the extent of the adjustment.

4.4.1. The customer is entitled to object in writing within six weeks of receiving the notification. The date of receipt of the objection by Veact shall be decisive for compliance with the deadline. If no objection is made within the deadline, the price adjustment shall be deemed to have been agreed upon expiry of the objection period.

4.4.2. If an objection is raised, the previously valid prices shall continue to apply without change. In this case, Veact reserves the right to terminate the contract extraordinarily in accordance with Section 9.4.1. The customer shall be specifically informed of the consequences of the objection in the notification of change.

4.5. Payment shall be due within fourteen calendar days of receipt of the invoice by the customer, unless the parties have expressly agreed otherwise in writing. The final price to be paid by the customer to VEACT is the price within the meaning of Section 4.1 plus the value-added tax applicable at the time.

4.6. The invoice amount shall be paid to the account specified in Veact’s invoice. It must be credited to Veact’s account no later than the seventh day after the due date (see Section 5.1.1.).

4.7. The customer shall only be entitled to offset claims if their counterclaim has been legally established or is undisputed. The customer shall only be entitled to assert a right of retention on the basis of counterclaims arising from this contractual relationship.

4.8. If the customer defaults on two payments that are due, VEACT may block services and refuse to provide any further services until payment has been made.

4.9. In the event of default in payment, Veact may demand reimbursement of expenses for each unauthorized return debit in the amount of the costs actually incurred by the credit institution for the return debit and proven by Veact. The customer reserves the right to prove that no damage has been incurred or that the damage is significantly lower.

5. Obligations and duties of the customer

5.1. Due date, obligation to perform in advance, and obligation to cooperate

5.1.1. The customer must make all preparations necessary for the fulfillment of the contract and fulfill all obligations to cooperate arising from the call-off of services properly and in a timely manner as soon as they become due. The cooperation must be carried out in such a way that the provision of services by Veact is neither delayed nor impaired. Unless otherwise agreed, the necessary services shall become due upon signing the contract in accordance with the agreed terms and conditions.

5.1.2. If Veact is unable to perform the contractually agreed service for reasons for which the customer or third parties within the customer’s sphere of influence are responsible, the agreed remuneration shall be due no later than three months after signing the contract, regardless of whether the service has actually been performed. This shall apply unless a different performance date has been expressly agreed. This provision serves to secure Veact’s payment claims and to ensure that Veact can provide its services as planned.

5.2. The customer is obliged to provide the data necessary for Veact to provide its services in a complete and correct manner and to notify Veact of any changes without delay. This applies in particular to address data and email addresses.

5.3. The parties agree that Veact may also send information and statements relating to the contractual relationship to the customer’s email address. The customer shall regularly check the email address provided to Veact as their contact address.

5.4. The customer is obliged to set up their systems and programs in such a way that neither the security, integrity nor availability of the systems used by Veact to provide its services is impaired. In particular, the customer must use suitable protection programs (firewall and virus protection) in their latest versions on their own computer hardware.

5.5. The customer is not entitled to remove or circumvent the existing protection mechanisms of the software against unauthorized use. The customer may not duplicate access keys or use them in any way other than for the services booked via the service request (using the order form or via the customer portal). The customer may not remove or alter any copyright notices, other legal notices, serial numbers, or other features used to identify the software.

5.6. The customer undertakes not to disclose personal access data (such as passwords) to other persons and to keep such data protected from access by other persons. They must be changed for security reasons before initial use and then at regular intervals. If there is reason to believe that unauthorized persons have gained knowledge of the access data, the customer must change it immediately. They may only be stored in encrypted form on electronic data carriers such as PCs, USB sticks, and CD-ROMs.

5.7. The customer shall create backup copies of all data at intervals appropriate to the application and in a suitable form, which they shall transfer to Veact’s servers on other data carriers that are not located at Veact.

6. Liability of VEACT

6.1. Veact or one of its vicarious agents shall only be liable for damages in cases of intent and gross negligence. If Veact or one of its vicarious agents breaches a material contractual obligation in a manner that jeopardizes the purpose of the contract, liability shall be limited to the typical damage that Veact could reasonably have foreseen at the time the contract was concluded, unless the breach of duty was intentional or grossly negligent. Essential contractual obligations in this sense are those whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely.

6.2. This limitation does not apply in the event of injury to life, limb, and/or health and in the event of liability under the Product Liability Act.

6.3. Notwithstanding the above provisions, the customer is solely responsible for the integrity of their data and its proper transfer to Veact’s systems. If the customer violates their obligations in this regard and damage results from this, the customer is solely responsible for this and indemnifies Veact against any claims by third parties.

6.4. If delivery delays and performance disruptions occur as a result of events of force majeure or other cases in which the cause of the performance disruption lies outside the area of responsibility of the contracting parties, neither of the contracting parties shall be responsible for this.

6.5. Events of force majeure include, in particular, strikes, lawful internal industrial action, war, terrorist attacks, unrest, natural disasters, pandemics, epidemics, fire, sabotage attacks by third parties, or the loss of permits through no fault of the parties. The parties shall immediately inform each other of the occurrence of events of force majeure.

7. Copyrights and use

7.1. Veact holds the copyrights to its systems and software, including data, databases, graphics, and forms.

7.2. For the duration of the contract, the customer shall receive the non-transferable, non-exclusive right to use Veact’s systems and software in accordance with the contract. Any further use is not permitted. The customer may not sell, rent, or otherwise transfer the rights granted to them by Veact in accordance with the contract to third parties.

7.3. Insofar as the customer is contractually granted the authority to use software in a network, this does not include the right to transfer the software to other companies or third parties for use. Any authorization granted to use the software in a network also does not include the right to use the software at other companies, business locations, branches, or offices of the customer. A separate license agreement must be concluded for each company, business location, branch, or office of the customer, unless expressly agreed otherwise.

The customer may not sell, transfer, rent, sublicense, modify, adapt, translate, reverse engineer, decompile, or disassemble any part of the applications and data. The customer may not create derivative products, attempt to determine the source code from the object code, or use content or software for purposes other than the use of the respective application or other purposes authorized by Veact.

7.4. Applications and data may not be copied in whole or in part or used for public purposes unless expressly authorized in advance in writing by Veact. These obligations shall also apply after the end of the contract.

7.5. If software has been provided to the customer on a temporary basis, the customer is no longer authorized to use Veact’s systems and software or data after the end of the contract. The customer is obliged to enable Veact or a representative appointed by Veact to uninstall the software in a timely manner. This does not apply to work results created by the customer in accordance with the contract until the end of the contract. The customer is responsible for storing their work results for other, later use.

7.6. The customer shall impose these obligations on their employees and vicarious agents in the same manner.

8. Data protection

8.1. The contracting parties undertake to maintain secrecy regarding all information, documents, and knowledge obtained in the performance of the commissioned services and to treat them as confidential, in particular not to exploit them or make them accessible to others. Both Veact and the customer shall ensure that the employees involved are bound by the confidentiality obligation.

Insofar as the customer commissions Veact with the collection, processing, and/or use of personal data of the customer and/or other third parties, Veact undertakes to process this personal data only in accordance with the relevant data protection regulations, in particular Regulation (EU) 2016/679 of April 27, 2016, on the protection of natural persons with regard to the processing of personal data, on the free movement of such data, and repealing Directive 95/46/EC (“GDPR”) and the Federal Data Protection Act (“BDSG”) and the laws and regulations enacted for their application, and exclusively in accordance with the customer’s instructions, in particular not to use it for other purposes and not to store it for longer than specified by the customer. In doing so, Veact must in particular ensure and prove to the customer upon request that the personnel employed have been bound to data secrecy in accordance with the applicable provisions before commencing the provision of services. This also applies in the context of commissioned data processing.

Veact collects, processes, and/or uses all personal data on behalf of the customer in accordance with the provisions specified in a contract for order processing in accordance with Art. 28 (3) GDPR. Data processing is carried out exclusively for the purpose of fulfilling the contract. The customer remains responsible for the legality of the collection, processing, and use of its customers’ data in accordance with the statutory provisions.

8.2. The customer agrees that their data, including the personal data of their employees, is subject to data processing for the purpose of fulfilling the contract. The customer is responsible to Veact for obtaining the consent of their employees for the use of the data, if necessary.

8.3. The specific rights and obligations within the framework of the data processing relationship arise from the effectively incorporated DPA within the meaning of Art. 28 (3) GDPR between Veact and the customer.

8.4. In all other respects, the responsibilities of the contracting parties are governed by the statutory provisions.

9. Commencement of contract, contract term, and termination

9.1. Commencement of contract

9.1.1. Subject to separate provisions, the contract shall come into effect upon receipt of the order or order confirmation.

9.1.2. The commencement of the contract term shall be determined by the service request (form or customer portal).

9.2. Commencement of service

Veact shall provide the contractually agreed service from the start of the contract. If Veact does not provide the service until a later date, the contract term shall be extended by the period between the start of the contract and the date of service commencement. In this case, the date of service commencement shall mark the date on which the customer’s payment obligation begins.

9.3. Contract term and extension

9.3.1. The contract term is determined by the service request (form or customer portal).

9.3.2. In the case of upgrades etc. to basic services ordered retrospectively, the contract term is based on the respective basic services.

9.3.3. In the case of one-off services, the contract term ends at the time of service provision without the need for separate termination.

9.3.4. If a minimum contract term is agreed in the service request (form or customer portal), the contract is automatically extended by the respective minimum contract term unless it is terminated by one of the parties in writing or in text form with six weeks’ notice to the end of the respective term. Unless otherwise specified in the service request (via form or customer portal), the extension periods shall be a maximum of one year in each case if the minimum contract term is longer than one year.

9.4. Termination

9.4.1. Unless otherwise agreed in the service request (form or customer portal), a notice period of six months to the end of the month applies to contracts concluded for an indefinite period.

9.4.2. The parties’ right to terminate the existing contract for good cause in accordance with § 314 BGB (German Civil Code) remains unaffected by the above provisions.

9.4.2.1. Veact shall in particular have the right to terminate the contract for good cause if

a) the customer objects to a change in the General Terms and Conditions in accordance with Section 1.5.1.;

b) the customer effectively objects to an adjustment of prices in accordance with Section 4.3;

c) the customer is in default of payment, for example despite two reminders;

d) in the event of a product being discontinued.

9.4.2.2. The customer shall in particular have the right to terminate the contract for good cause if

a) Veact makes significant changes to these General Terms and Conditions in accordance with Section 1.5. Significant changes include, in particular, adjustments to the main performance obligations, price changes outside the price adjustment indexation set out in Section 4.3, changes to the liability provisions, or changes that significantly affect the use of the service.

b) Veact changes or adjusts services and performance to an extent that, contrary to Section 2.2, significantly impairs the purpose of the contract for the customer.

c) The customer has the right to terminate the existing contract for cause upon receipt of the notification of change and, in the event of a significant change, within a period of six weeks.

9.4.3. Terminations may be made in writing or in text form. This requires a legible declaration in which the person making the declaration is named and which is submitted on a permanent data carrier. The termination is deemed to have been made in due time if it is demonstrably received by Veact within the notice period. The termination is deemed to have been made in due time if it is demonstrably received by Veact within the notice period.