Terms & Conditions
General consulting conditions for consulting services
For the general business relationship between Xamine and the client, the following general terms and conditions apply in the version valid at the time of the conclusion of the contract, insofar as no product or service-specific general terms and conditions apply.
For consulting services, the terms and conditions for consulting services, which are included in the general business relationships as a supplement, apply.
The client accepts all of the above conditions by placing the order or accepting the service. These conditions also apply to future business relationships, even if they are not expressly agreed again.
§ 1 Scope of application, different terms and conditions
(1) Xamine does not recognize deviating conditions of the client, unless Xamine has expressly consented to their validity in writing.
(2) Deviating agreements must be documented on a permanent data carrier, e.g. by email.
(3) Changes to the conditions, including this confirmation clause, as well as the agreement of delivery dates or deadlines, which can be binding or non-binding, require confirmation by Xamine. This does not affect the effectiveness of individual agreements.
(4) These general terms and conditions apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB).
(5) An entrepreneur is a natural or legal person or a legal partnership who, when concluding a legal transaction, is exercising their commercial or independent professional activity.
§ 2 Offer and conclusion of contract
(1) Xamine submits a written offer to the client 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 when Xamine receives the written declaration of acceptance.
§ 3 Prices and terms of payment
(1) The prices and terms of payment result from the offer to conclude a contract.
(2) Unless otherwise specified in the respective valid offers, the prices do not include sales tax.
(3) All prices are payable without deductions.
(4) In the event of default in payment, Xamine is entitled to block the purchase of further services, in particular access to the system and the database. During the delay, the client has to pay interest on the debt at the statutory interest rate according to § 288 BGB.
(5) After unsuccessful setting of a deadline, Xamine is entitled to extraordinary termination of the contract. The payment claim remains unaffected.
additionally for consulting services:
(6) All remuneration and agreed flat-rate fees as well as the expenses incurred (travel costs, expenses, work material, purchased services, etc.) are net prices and must be remunerated.
(7) If the contracting parties have not agreed on a specific remuneration, Xamine will charge the services provided at hourly rates on the basis of the Xamine price list valid at the time the contract was concluded. In this case, third-party services will be charged according to the actual expenditure.
(8) Xamine can demand reasonable advances on remuneration, flat-rate fees and reimbursement of expenses at any time. Xamine is entitled to invoice partial services provided. At the end of the contract, Xamine will issue a final invoice, which also includes a list of all previously invoiced services and expenses and their status (paid / unpaid).
(9) By paying the remuneration / flat fee, all claims by Xamine for the contractual provision of its consulting services are settled.
§ 4 Description of Services
(1) The subject of the service is the provision and paid access to the platform provided by Xamine and described in more detail in the current product description.
(2) The range 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 cannot be reached via the Internet due to technical or other problems that are beyond the control of Xamine (force majeure, fault of third parties, etc.). Also excluded are times of planned unavailability, which are necessary to maintain or service the systems. Xamine will agree on times of planned unavailability separately with the client. Xamine can restrict access to the services if the security of the network operation, the maintenance of the network integrity, in particular the avoidance of serious disruptions to the network, the software or stored data so require.
(6) The client is aware that data come from sources from third parties such as “Google” and that Xamine has no influence on their correctness, completeness or timeliness and does not owe them either.
(1) Xamine offers advice 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 agreement.
(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 diligence 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, trademarks and other property rights to the platform, the database work, the database belong exclusively to Xamine.
(2) The client has the simple, non-transferable, non-sublicensable right, limited in time to the duration of the contract, to make individual data records visible on his screen using the online search masks provided by Xamine and to make a printout for permanent visualization . An automated query by scripts or similar is not permitted. Copyright notices or other proprietary rights notices on the platform may not be changed.
(3) The client may not use the data obtained by querying in full, in part or in part to build your own database in any form and / or for commercial data processing or providing information to third parties.
(4) By submitting the content set up and required for analysis by the platform, 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 the provision in the database and retrieval by the contractual partner, in particular to save, 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 marketing materials.
§ 6 Mutual Rights and Obligations
(1) Xamine undertakes to provide the client with the access data required to use the Internet platform on a data carrier or by electronic data transmission, e.g. by email, within five working days after a binding order has been placed. Passing on the access data to third parties or making copies for third parties outside the scope of this contract is not permitted.
(2) The client is obliged to keep any passwords for the use of Xamine services secret and to inform Xamine immediately if there are indications that a password has been misused by a third party.
(3) The client is responsible for all activities that are carried out using his password. If the client is not responsible for the misuse of his password because there is no violation of the existing duty of care, the client is not liable.
(4) The client creates the prerequisites necessary for the use of the Xamine services, including network connections (internet connection), telecommunications connection, hardware and software (in particular current and compatible browser technology) as well as sufficiently competent personnel.
(5) The client is obliged to provide all necessary cooperation services so that Xamine can perform the contractual services.
(6) All questions from Xamine about matters in connection with consulting services to be provided are answered completely, accurately and at short notice.
(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 are accepted by the client within 10 working days of receipt.
(9) Necessary corrections and change requests will be communicated to Xamine immediately in writing. If the client does not respond within a period of 10 working days from receipt, the service is deemed to have been accepted.
(10) After signing this contract by both parties, Xamine is entitled to communicate this contractual relationship to the outside world on the website of the contractor.
(11) The client undertakes to delete all electronic copies of the contractual access data after the contractual relationship has ended. Information and content that is present in embodied form are to be given 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 client has provided Xamine with all information and documents required for the execution of the service in good time. Agreed deadlines begin with the receipt of the order confirmation. In the case of additional or expansion orders placed at a later date, the deadlines are extended accordingly. Unpredictable, unavoidable and events beyond the control of Xamine and for which Xamine is not responsible, such as force majeure, war, natural disasters, official orders or industrial disputes, release Xamine for their duration from the obligation to timely delivery or performance.
(2) If the provision of services by Xamine is delayed, the client is only entitled to withdraw if Xamine is responsible for the delay and a reasonable deadline set by the client for the service has passed without success.
(3) If there are delays for which the client is responsible, for example due to subsequent change requests or delayed provision of information, the delivery can be postponed beyond the delay period. Xamine provides 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) None of the contracting parties will use or disclose confidential information of the other contracting party without the prior written consent of the other party, unless this is done to fulfill the obligations under this agreement or if this is due to law, another regulation or a court order is required. The contracting party obliged to disclose confidential information shall notify the other contracting party of this as early as possible before the disclosure of this information. Upon termination of this agreement, the parties will immediately return or destroy all confidential information and, upon request, confirm this in writing.
(2) “Confidential information” in the context of this agreement is all data protected by copyright and all other information that is disclosed by one of the contracting parties to the other and which is either marked as “confidential” or is to be regarded as confidential due to its content. Deviating from this, confidential information does not include information that is known to the general public, that was known to the other party to whom it was disclosed before it was disclosed, or that is independent and without use of the confidential information by the recipient Party developed.
§ 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 that are developed or made available in accordance with this agreement, in particular to software, including source codes, databases, hardware or other material, such as analyzes, developments, documentation and reports, as well as on Preparatory material remains exclusively with Xamine or its licensors.
(3) The client may only use the data and evaluations obtained by means of the software for his own use. This includes the right to save an analysis result for your own follow-up. Any further use requires a written agreement. These obligations continue to exist even after the contract has ended.
§ 10 Guarantees and Liability
(1) For damage other than injury to life, body and health, Xamine is only liable insofar as this is due to willful or grossly negligent action or culpable breach of an essential contractual obligation, compliance with which is of particular importance for the achievement of the contractual purpose is based on Xamine. This applies in particular to the inaccessibility of the contractual partner’s website.
(2) If Xamine negligently breaches an essential contractual obligation, the obligation to pay compensation for property damage is limited to the foreseeable, typically occurring damage. The provisions of the Product Liability Act remain unaffected. Xamine is not liable for lost profit or other financial losses of the contractual partner. As far 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 specified below, Xamine is liable in accordance with the statutory provisions.
(4) Claims for damages shall become statute-barred – with the exception of claims arising from tort and under the Product Liability Act – at the latest at the end of 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) A strict liability for damages (§ 536a BGB) for defects existing at the time of the conclusion of the contract is excluded.
(6) We are not liable for the correctness of the data and content made available or determined by third parties. In particular, Xamine does not accept any liability for the constant availability of its services or for delays caused by incomplete data transmission and the like.
(7) The client is obliged to examine all services immediately after receiving 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 any advisory errors in advisory services are based on the fact that the client has not, not fully or not in time, fulfilling the obligation to cooperate in accordance with Section 6, Xamine is not liable. In the event of a dispute, the client will provide evidence of the complete and timely fulfillment of all cooperation obligations.
(9) A success of the cooperation resulting from the consultation is not owed with regard to the respective task.
(10) In the event of data loss, Xamine is only liable to the extent of the reconstruction effort required if backup copies are available.
§ 11 Term and Termination
(1) Contracts begin at the time specified in the offer.
(2) The contract period is 12 months unless otherwise contractually agreed.
(3) The contract is automatically extended for a further 12 months if neither party cancels it with a notice period of 4 weeks before the end of the contract period.
(4) The right to terminate for an important reason remains unaffected. An important reason exists in particular if the contractual partner fails to make payments due in accordance with Section 3 of this contract despite a reminder and a grace period.
(5) The termination must be in writing.
(6) From the time the contract is terminated, Xamine is entitled to irrevocably delete all data stored during the term of the contract.
§ 12 Right of retention
The client is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.
§ 13 Final provisions
(1) With regard to all legal relationships arising from this agreement, the parties agree to the application of the law of the Federal Republic of Germany to the exclusion of the UN Sales Convention (CISG).
(2) Oral side agreements have not been made. Statements made previously by one of the contractual partners in the course of contract negotiations are irrelevant unless they have been incorporated into the contract.
(3) Should individual provisions of this contract be or become ineffective, this shall not affect the validity of the remaining provisions.
(4) If the client is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction is Munich.
(5) The place of performance is Munich.
As of July, 18th 2021