9. Confidentiality / Data Protection
The data protection agreement respectively policy at https://www.gbtec.com/data-privacy applies to all personal data that the customer provides us with. If the customer registers via the website of GBTEC Software AG, the customer is separately referred to the data protection policy. The use of the services or software via the website of GBTECSoftware AG is only possible if the customer has previously agreed to the provisions of the data protection agreement respectively policy. Where required, GBTEC Software AG will conclude a separate agreement for contract data processing with the customer. In addition, the following shall apply:
- The Parties shall provide each other with all the information and documentation required for the fulfillment of the contract. The Parties undertake to store documentation supplied or produced as part of this contract properly and to protect it against view by third parties.
- The Parties undertake to ensure that all information and documents of whatever kind obtained in course of the collaboration are handled in strict confidence and are only used for the purpose of the contract. Confidential information must not be shared with third parties without the prior written consent of the Parties. In addition to knowledge of the product and business policy and distribution channels, that applies especially to all information which is designated as confidential or is recognizable as business or trade secrets. This includes in principle all business, technical, financial and other information concerning business activity, projects and customers.
- The obligation under Para. 9.2 does not apply to such information and parts thereof which the receiving party can demonstrate
a. was demonstrably already known to it before the date it was received, or
b. was publicly known before the date it was received or was generally accessible or was known or generally accessible after the date of receipt without its fault, or
c. was made accessible to it after it was lawfully transferred by a third party which is not subject to any obligation of secrecy to the legal owner of the information in this regard, and to which the information was disclosed or made accessible without a breach of a confidentiality obligation, or
d. was developed independently by it (without using information subject to confidentiality).
- The Parties are aware of the fact that information may also be subject to banking secrecy. The Parties and the advisers/third parties employed by them similarly undertake to maintain the strictest silence about such information according to the statutory regulations.
- All persons who are or may be engaged for the Parties with fulfillment of the resulting responsibilities in connection with this contract shall be obligated to maintain the principles relating to processing personal data (article 5 GDPR) and are referred to the criminal and administrative provisions under the BDSG as well as the GDPR and other relevant legal provisions.
- All technical and organizational measures shall be taken that are required to ensure the implementation of the provisions of the laws specified above, in particular the requirements specified in articles 25, 28, 32 GDPR.
- The duty to maintain confidentiality and banking secrecy shall continue to apply without restriction after the end of this contract.
- The Parties shall each refrain from soliciting employees of the other Party during the existing contractual relationship or for a period of one (1) year after the end of the contract. In the event of violation, a contractual penalty shall be paid to the Party concerned; the amount shall be set in accordance with § 315 BGB at the latter’s best discretion and in the event of a dispute shall be subject to judicial review. This shall not apply if the other Party demonstrates that it did not solicit the employee.
- This provision shall apply accordingly if the employment relationship is established with a company affiliated with one Party under corporate law or a free employee relationship is established with the latter.
- Unless otherwise agreed between the Parties in writing, GBTEC Software AG is entitled to name the customer as a reference in publications on the internet and in print media. The promotional material released for this purpose, e.g. logos, shall be specified by the customer and the latter undertakes to grant all rights required in this regard. Customer data shall only be used for internal company purposes, provided the customer has granted its consent for this. The customer has the option at any time to revoke these rights of GBTEC Software AG in writing with future effect. Print media already produced at this time may be used up by GBTEC Software AG. The customer may be named as a reference up to two (2) yeas after the end of the contract.
10. Changes to Services, Cloud Usage Fees and the T&Cs / Final Terms
- GBTEC Software AG reserves the right to make changes unilaterally at any time to the content of these General Terms & Conditions of Business and the service and product specification, provided the change is based on objective reasons and this is reasonable for the customer, or if the change is only beneficial to the customer. Justified occasions for changes both to the service and product specification and the T&Cs may be:
- new statutory or official requirements,
- requirements of a judicial ruling addressed to GBTEC Software AG,
- changes in the current market circumstances,
- introduction of additional new services which require a service specification in the T&Cs, unless the previous user relationship is disadvantageously changed as a result,
-essential changes to close existing security gaps,
-adaptations which serve technical progress or are technically and procedurally essential, unless they have fundamental effects for the customer.
GBTEC Software AG shall inform the customer of the change in writing by email no later than four (4) weeks before the change comes into effect. The change shall require the consent of the customer. Consent is deemed given and the General Terms & Conditions of Business or new service and product specifications shall be included in the contract relationship unless the customer objects to the change by email or in writing within four (4) weeks after receipt of notification of the change for the time the change comes into effect. If the customer does object, it shall continue to be governed by the previous contractual provisions. GBTEC Software AG shall set the customer the above-mentioned appropriate response time as part of the notification of the amended version and point out the consequences of its failure to respond.
If the customer does object, each Party has the right to cancel the contract by email or in writing with the period of notice that applies to ordinary termination.
- GBTEC Software AG is entitled to increase its usage fees as part of Cloud Computing and its recurrent services in order to balance out any increase in overall costs (general price movements). The overall costs in particular consist of costs for maintaining and operating the Cloud, including material costs, wage costs and overheads, service costs, costs for customer administration (IT support) and costs of general administration. The price adjustment may only be made up to the amount of the increased costs and according to the proportion of the increased cost elements to the overall costs; it is only permissible if the increased costs are based on changes that have occurred after the conclusion of the contract and which were not originally caused by GBTEC Software AG. Only one price increase for each product is permitted for each calendar year.
- If a price increase amounts to more than 5% of the price valid at the time of the increase, the customer is entitled to cancel the contract by email or in writing to the extent of the products affected by the price increase and – if the product concerned is a prerequisite for another product – also to the extent of such other product, within four (4) weeks after receipt of the notification of the increase, with effect from the time of the increase coming into effect. If the customer makes use of this special cancellation right, the increase does not come into effect and the contract ends when the price increase comes into effect. If the customer does not cancel or does not do so by the deadline, the contract is continued at the new price at the time specified in the notification. GBTEC Software AG shall inform the customer of its right to cancel as part of the notification of the price increase and specifically of the consequences of a cancellation that is not received by the deadline.
- If the actual overall costs at GBTEC Software AG as defined in Para. 10.2 are reduced for reasons that occurred after contract signature and which were not caused by GBTEC Software AG, GBTEC Software AG shall take this into account appropriately and pass on the reduction to the customer, to the extent of the cost reduction and according to the proportion of the reduced cost element to the overall costs.
- GBTEC Software AG shall inform the customer of a price adjustment at least four (4) weeks before it comes into effect.
- The present contractual relationship is governed solely by the law of the Federal Republic of Germany. The UN Sales Convention – CISG – does not apply.
- Where the customer of GBTEC Software AG is a merchant, legal entity under public law or a special fund under public law, the place of jurisdiction for disputes arising from this contract, its execution and the validity of the contract, is agreed as Bochum. GBTEC Software AG is also entitled to sue the customer at any other jurisdiction provided for by law.
- Changes or additions to this contract require the written form to be effective. A waiver of the written form requirement may only be made by means of an express written agreement.
- If a provision of this agreement is or becomes invalid during the term of the contract, this agreement is not affected as a result in all the remaining provisions and shall continue to apply unchanged. The invalid provision shall be replaced by another lawful provision which comes closest to the meaning and purpose of the invalid provision.
Version dated: 05/19/2020