1.1 These General Terms and Conditions apply for the agreement concluded between the Client and Creditsafe Deutschland GmbH (“Creditsafe”), Schreiberhauer Strasse 30, 10317 Berlin regarding the provision of online business and credit information by Creditsafe (“service”).
1.2 These terms and conditions apply exclusively for business transactions with entrepreneurs, legal entities under public law and foundations under public law. An entrepreneur for the purposes of these terms and conditions is a natural person or legal entity or joint partnership with legal capacity that acts while exercising their commercial or independent professional activities in concluding a legal transaction.
1.3 Any of the Client’s general terms and conditions which are contrary to these terms and conditions are not part of the contract and are not acknowledged unless Creditsafe has explicitly approved their application. This also applies if Creditsafe performs its services implicitly in the knowledge of these contradictory or deviating terms and conditions of the Client.
2 Conclusion of contract
As a rule, the contract with the Client is concluded by way of a telephone order of the services at the Creditsafe client centre or by Client confirmation of an offer issued by Creditsafe in text form (e.g. by e-mail or letter). Following the order, the Client receives login data to its Creditsafe account. Only after this account has been released by entering the login data can the Client use the full service.
3 Object of the contract
3.1 The service includes in particular the following:
· Creditsafe reports, i.e. company statements with information regarding and creditworthiness checks for third parties and/or
· Supply of marketing and other data regarding potential contracting partners of the Client
· Information on private persons and negative characteristics of natural persons, which come from infoscore Consumer Data GmbH as a third-party supplier.
3.2 The service is performed via the Creditsafe database, which can be accessed online. The Client can use this database to access the desired data according to this contract and the legal provisions. The database can be accessed via the Creditsafe website using the username and password provided by Creditsafe. These are to be retained and kept secret by the Client. Further details regarding the service can be found on the Creditsafe website.
3.3 The databases upon which the service is based contain information from various data sources and third-party deliveries. Creditsafe is explicitly not responsible for ensuring that the service contains general or specific information regarding any particular third party. Creditsafe is also not responsible for currentness, correctness and accuracy of the information. This applies in particular with regard to information on private persons and negative characteristics of natural persons, which come from infoscore Consumer Data GmbH as a third-party supplier.
3.4 Creditsafe is entitled to contact the Client during the contract term regarding new developments and products at Creditsafe. The Client may withdraw its permission at any time.
3.5 Creditsafe is entitled to make changes to the services as long as the agreed functions are not limited or impaired as a result of this. Creditsafe will take reasonable measures to inform the Client about such changes as early as possible.
4 Granting a licence
4.1 The service provided to the Client includes a non-exclusive and nontransferable right of use in the form of a single licence for a natural person and is provided to the Client for use only by the Client and within the company in Germany. The Client is not permitted to any make any use beyond this without the permission of Creditsafe. Additional licences are required for the use of services by more than one natural person, regardless of whether this happens simultaneously, at a later/earlier time or in another way.
4.2 The Client is to take suitable measures to observe the agreed scope of the licence. In particular, the Client is not entitled to market, transfer, sublicense or distribute the service or parts thereof, or offer the service or parts thereof as part of its own services or products or make it available to or usable by others in another way (third parties).
4.3 Brands, company logos, proprietary notices, serial numbers or other characteristics attached to identify Creditsafe or other characteristics attached by Creditsafe may not be removed or changed by the Client.
5 Legitimate interest in accessing personal data
5.1 The transfer of personal data is only permitted where the Client has credibly presented a legitimate interest in its knowledge as recipient of the information.
5.2 For this reason, the Client undertakes to only request information which contains personal data where it has such a legitimate interest, truthfully stating the reason before the transfer of the information and terminating the process if there is no legitimate interest.
5.3 According to the legal provisions, it is the Client’s duty to record the reason for the existence of a legitimate interest and the way in which it is credibly demonstrated is incumbent on the Client as recipient of the information in the case of an automated access system.
5.4 In case the Client uses the monitoring service (“early warning system”), according to the applicable separate statement of service, Creditsafe will inform the Client by email whenever there is a relevant change in the data on the company monitored, e.g. when the director changes, in case of insolvency, newly published finance reports, changes to the credit rating etc. The Client is obliged to stop the monitoring service for a given company when he does no longer have a legitimate interest in regard to the personal data of the company.
6 Prices and payment conditions; electronic invoices; sett-off
6.1 All pricing information is quoted net and excludes VAT.
6.2 Special prices agreed upon conclusion of the contract apply only for the duration of the first year of contract. Thereafter, the Creditsafe standard prices stated to the Client during conclusion of the contract shall apply. Changes to the Creditsafe standard prices are determined by section 12 (Changes to the general terms and conditions) of these general terms and conditions. Agreements to the contrary between the Client and Creditsafe remain unaffected by this.
6.3 Creditsafe reserves the right to issue electronic invoices pursuant to section 14 subsection 1 of the German Value Added Tax Act (UStG). The Client agrees that he may receive the invoice in electronic form, and hereby declares his consent in this regard.
6.4 Unless otherwise agreed, invoices are to be settled within eight (8) days of receipt of the invoice.
6.5 As a general rule: Claims by Creditsafe can only be offset against undisputed or legally established counter-claims. In the case of defects, the Client only has a right of retention where the retained amount does not exceed the reduced value of the service in question caused by the defect or the provisional costs of subsequent fulfilment or removal of the defect.
6.6 If the Client is in arrears with the payment of a respectively agreed portion of the remuneration in the event of an agreed non-annual payment method, the entire annual fee is due immediately.
6.7 In the case of an outstanding payment, Creditsafe may temporarily suspend performance of the service until the payment has been made in full.
7 Contract term; termination; suspension of access to the service
7.1 This agreement shall apply for 12 months from the date stated in the order confirmation unless otherwise stated in the order confirmation.
7.2 The right of the contracting parties to terminate the contract for just cause remains unaffected by this. Creditsafe has just cause if a continuation of the contractual relationship until the end of the agreed term is unreasonable for Creditsafe, considering all of the circumstances in the given case and having considered the interests of both parties. Creditsafe is in particular entitled to terminate the contract for just cause if:
· The Client is bankrupt or insolvent, if an application is made to initiate insolvency proceedings against the Client and rejected as unjustified or due to lack of assets,
· If the Client grossly breaches a contractual obligation and this breach is not remedied within an appropriate period upon written request from Creditsafe. Providing a warning or setting a deadline is unnecessary where the continuation of the contractual relationship appears unfeasible due to the gravity of the breach of contract, a successful remedy cannot be expected or a termination with immediate effect appears justified, having considered the interests of both parties.
7.3 Terminations must be declared in writing. The Client is also permitted to issue a notice of termination by email to inf[email protected]
7.4 Suspension of access to the service: In the event that the Client violates the terms of service in regard to the access to the service and the use of the data, in a more than merely insignificant manner, Creditsafe may suspend the Client’s access to the service temporarily or permanently, insofar as this is necessary and appropriate to remedy the violation or to prevent the repetition of the same or similar violations. The right to terminate the agreement for cause, if given, shall remain unaffected.
Creditsafe shall endeavour to provide access to the service to all Clients 24 hours a day and 7 days a week. Temporary interruptions of operations are, however, possible due to ordinary maintenance work, inherent disruptions on the internet from foreign providers or foreign network providers, or in the case of force majeure. The Client therefore has no claim to uninterrupted access to the service at all times. No specific availability of the service is agreed.
9 Warranty, accuracy of the service
Creditsafe endeavours at all times to provide a high-quality service. However, the service is not designed as the sole basis for a decision and is based on information from third parties; Creditsafe cannot vouch for the currentness, correctness and accuracy of the data. For this reason, the evaluation of data taken from the service takes place essentially at the Client’s own risk. This applies in particular with regard to information on private persons and negative characteristics of natural persons, which come from infoscore Consumer Data GmbH as a third- party supplier. Creditsafe assumes no responsibility for this information.
10.1 Creditsafe is liable without limit, according to the legal provisions for damages sustained by the Client as a result of intentional or grossly negligent behaviour of Creditsafe or its agents, and for personal damages or damages under the Product Liability Act (Produkthaftungsgesetz).
10.2 For the remainder, Creditsafe’s liability for claims for damages is limited according to the following conditions, unless otherwise appears in a warranty assumed by Creditsafe:
· Creditsafe shall only be liable for damages caused as a result of negligence where they arise from a breach of significant contractual duties. Cardinal obligations are those contractual obligations which make the fulfilment of the contract possible in the first place and where the Client can rely on them to be observed. Where Creditsafe is liable for ordinary negligence, its liability is limited to the typically foreseeable damage.
· Creditsafe’s liability for losses of data and/or programmes due to negligence is limited to the typical cost of restoring the original state, which would have been incurred if the Client had performed regular data backups suitable according to the circumstances.
10.3 The provisions of the above paragraph also apply accordingly for the limitation of replacement damages for wasted expenditure (§ 284 German Civil Code, BGB).
10.4 The above limitations on liability also apply to Creditsafe agents.
11.1 The contracting parties pledge to treat any trade and business secrets of the other party, which they – or their agents – have learned in the course of initiating or fulfilling the contract, as confidential. These obligations do not apply to information, knowledge and experiences which
· are proven to have been generally known without a violation of this obligation of secrecy,
· are proven to have already been known by the parties before the information, knowledge and experiences were acquired,
· were received by a third party without an obligation to secrecy, or
· are proven to have been independently acquired.
11.2 The burden of proof for the existence of one of the above exceptions is borne by the party wishing to claim the exception.
12 Changes to the General Terms and Conditions
12.1 The Client is notified of changes to these General Terms and Conditions in text form, with the changes from the previously applicable General Terms and Conditions highlighted.
12.2 The Client may object to such a change. In order to do so, the Client is to declare an objection to Creditsafe in writing or by sending an email to [email protected] within four (4) weeks after receipt of the notification from Creditsafe regarding the change to the General Terms and Conditions (hereinafter “changes”). This period is only provided if the objection is received by Creditsafe before the deadline. Where the Client does not raise an objection in the correct form within the given period, the changes are regarded as approved, and the amended General Terms and Conditions become a component part of the contract. Creditsafe shall explicitly make reference to this and to the form and deadline for the objection in the notification regarding the change. If the Client raises an objection to the changes in the correct form within the period, the contract continues unchanged. However, in this case, Creditsafe has the right to terminate the contract with a period of notice of four weeks by issuing a written declaration to the Client, where continuing to observe the unchanged contract is commercially or technically unreasonable for Creditsafe.
13 Applicable law, place of performance and place of jurisdiction
13.1 This contract is exclusively subject to the law of the Federal Republic of Germany, excluding UN CISG.
13.2 The place of performance of the services is Berlin.
13.3 The venue for all current and future claims arising from or in connection with this contract involving merchants, legal entities under public law or special funds under public law is the competent court at the principal place of business of Creditsafe. The same venue applies if the Client has no general place of jurisdiction, moves its domicile or habitual residence from Germany after conclusion of the contract or the Client’s domicile or habitual residence is not known at the time the claim is filed.
14 Final provisions
14.1 There are no verbal or written side agreements to this contract. Amendments or supplements to the contract, which do not fall under section 12 (Changes to the General Terms and Conditions), must be made in writing. This also applies for the removal of the requirement of written form.
14.2 Should one or more of the provisions agreed between the parties be or become invalid, this does not affect the validity of the remaining provisions. The invalid provision is replaced by one which, where legally possible, most closely reflects the location, time, degree and scope of the meaning and purpose of the invalid provision. Gaps in the contract are to be filled by what the parties would have agreed given a reasonable assessment of the factual and legal situation and considering the legitimate interests of the respective other party had they been aware of the need for a provision regarding the matter at hand. This also applies if the invalidity of a provision is due to a prescribed degree of the service or time (period or deadline); in that case, a degree of the service or time (period or deadline), which most closely reflects the original intention, shall be regarded as agreed. This clause does not apply to the above General Terms and Conditions.
Version: March 2016
Creditsafe Deutschland GmbH – Creditsafe Company Address Terms and Conditions
These specific terms and conditions apply in addition to the general terms and conditions at CREDISAFE for delivery of company information in a list or otherwise summarised (CREDITSAFE company addresses) to the Client for advertising purposes.
II. Purpose of the delivery of CREDITSAFE company addresses
CREDITSAFE delivers company addresses exclusively for direct advertising campaigns for use by the Client or by contractually affiliated companies for the purposes of order data processing according to § 11 of the Federal Data Privacy Act (BDSG). Any forwarding of information to third parties beyond this is not permitted and requires the prior consent of CREDITSAFE. Third parties also include companies affiliated with the Client according to § 15 of the Companies Act (AktG). The Client pledges to use the information provided to it exclusively for the purpose for which it was transferred and only to use the information as permitted by law. The Client acknowledges that CREDITSAFE may check that the information is being used in accordance with the contract by taking suitable measures, for example using special/fake addresses.
III. Scope of the right of use
CREDITSAFE offers the data for single use, multiple uses and for purchase. The “single use” licence entitles the user to a one-off use of the information, while “multiple-use" allows the user to use the information as many times as they wish within one year of the delivery date. Purchasing the information allows the user to use the addresses without restriction. Unless otherwise agreed in a specific case, the multiple use form is regarded as agreed.
IV. Transfer to own data stocks
All data supplied may not be used more frequently than contractually agreed. Subsequently, they are to be destroyed immediately without replacement; the destruction must be proven to CREDITSAFE on request. Exceptions to this are the address details of those affected persons who have responded to a direct advertising campaign by the customer by placing an order or requesting an offer; These data are transferred to the customer for unlimited use.
V. Format of CREDITSAFE company addresses
Due to the dependency on external data sources and the constant process of change, to which personal database contents are naturally subject, CREDITSAFE can, despite all care, assume no liability for the accuracy, completeness or timeliness of the information provided.
The Client acknowledges that returns and scattered losses are unavoidable for this reason and do not represent defects. The risk of the suitability of the data for the intended purpose is borne by the Client.
Where an address selection has been performed prior to the delivery, the data selection is undertaken by CREDITSAFE using the Client’s specifications. The Client is responsible for the complete and correct transmission of the selection criteria.
Complaints due to apparent defects are to be reported by the Client in writing within eight days of delivery of the data – or in the case of hidden defects, within eight days of knowledge of the defect. Delayed objections result in an exclusion of warranty. Defects in part of the delivery do not entitle the Client to object to the entire delivery.
VII. Observation of legal provisions regarding competition law
CREDITSAFE informs the Client that simply the transmission of data to the Client does not allow for a statement as to whether the persons named in the delivered data have agreed to being contacted for advertising purposes. It is the duty of the Client – or the party using the information for advertising purposes – to ensure this. The Client is solely responsible for the legal permissibility of the further processing of the data, in particular the observation of the legal provisions regarding competition law.
If the Client is a company, its managing director shall be personally liable for observing this duty.
Where CREDITSAFE is held liable by third parties due to an alleged breach of a legal provision due to the further processing of data by the Client, in particular due to violations of proprietary or competition law, the Client indemnifies CREDITSAFE from all claims in this regard.
IX. Contractual penalties
In the event of a failure to comply with the conditions of use, the Client pledges to pay CREDITSAFE a contractual penalty to the amount of four times the net invoice amount of the underlying data supplied, but at least 2,500 euro. The contractual penalty does not preclude further claims for damages, but is offset against these.
Updated: March 2016