c/o Digital Hub Logistics Hamburg
Am Sandtorkai 32
Version 1.9 from 02.05.2023
The following General Terms and Conditions of Business apply to the contractual relationship between M-TRIBES GmbH, with its registered office at c/o Digital Hub Logistics Hamburg, Am Sandtorkai 32, 20457 Hamburg, Germany (hereinafter "M-TRIBES") and its customers (hereinafter "customer") for the MotionTools software platform (hereinafter "software"). The exact description of the software can be found in the additionally valid contract provided to the customer.
If the customer orders further products or services from M-TRIBES in the future, the following General Terms and Conditions of Business shall also apply to these future products or services, unless other contractual agreements are made. Additional or conflicting general terms and conditions of the customer shall not apply, even if M-TRIBES accepts an order in which the customer refers to its own general terms and conditions of business and/or to which a copy of the customer's general terms and conditions of business is attached, even if M-TRIBES has not separately objected to their validity.
2.1 M-TRIBES makes the software available to the customer as software as a service (hereinafter "SaaS"), as specified in more detail in the agreement. Unless otherwise agreed, the customer's data is hosted by M-TRIBES on the servers of external service providers and made available to the customer or its customers via the Internet (as a web solution via Internet browser or as an app for smartphones).
2.2 Insofar as the customer requests further products or services in addition to the software described in the contract, this may be the subject of a separate agreement.
2.3 M-TRIBES may update the software free of charge during the term of the agreement provided that such updates or upgrades that do not substantially limit software features are removed or substantially altered and/or the user interface of the software is not changed in a way that would require additional training for the customer or its customers. Substantial limitations, changes or the removal of basic performance features resulting from the service description will only be carried out with the prior consent of the customer. It is equivalent to active consent if
a) M-TRIBES shall inform the customer of the corresponding restrictions, changes or removal of services in writing or in text form (e.g., by e-mail) and
b) the customer for the change in writing or in text form (e.g. by e-mail) before implementation does not contradict.
2.4 M-TRIBES is not obligated to offer the customer potential new versions of its technology free of charge as described in section 2.3 of these TCs. This does not apply to new versions that serve to correct errors.
2.5 If the customer requests changes, additional agreements can be concluded between M-TRIBES and the customer regarding individual changes or extensions to the software. M-TRIBES shall check the extent to which the customer's wishes can be realized, for example, within a new software version. M-TRIBES is not obligated to implement change requests that go beyond the standard software solution sold to the customer.
3.1 Subject to the terms of the agreement and payment of the agreed fees (including usage-based fees), M-TRIBES grants the customer during the term of the agreement a simple, non-exclusive right, limited and non-transferable in accordance with the following provisions, to use the software as intended, in particular to access the software, to enter and/or upload data into the software and to process this data with the software. This right of use shall not include any rights to the source code on which the software is based.
3.2 The customer is entitled to copy, edit or decompile the software exclusively in the cases specified in § 69d and § 69e UrhG (German Copyright Act). Furthermore, the Customer undertakes to refrain from any kind of duplication, processing or decompilation of the software and to impose a corresponding obligation on such persons, including affiliated companies, to whom it provides the software.
4.1 The parties may separately agree on additional work or services that are provided to the customer by M-TRIBES in connection with the software ("Additional Services"). Such additional services may include (but are not limited to)
a) adaptations of the software and/or
b) Changes to existing software features and/or the addition of new software features requested by the customer (the provisions of section 2.2 of these TCs apply here)
c) “Business validation”, “incubation” or “acceleration” formats, Workshops
and other services i.e. in the area of growth.
4.2 For each additional service pursuant to Section 4.1 of these TCs, the parties shall individually agree on the scope of services including the corresponding costs to be borne by the customer within the framework of a contract.
5.1 Unless expressly agreed otherwise, M-TRIBES is responsible for hosting the software and always retains physical control of the software. M-TRIBES may use external hosting service providers for this purpose in accordance with the provisions of section 9 of these terms and conditions. The software is made available to the customer via the Internet. Access, use, and operation are carried out via standard web browsers or, if contractually agreed, via mobile applications (hereinafter "apps").
5.2 M-TRIBES is not obligated to provide or otherwise make available to the customer copies of computer programs or parts of the source code of the software, whether in the form of object code or source code.
6.1 During the term of the agreement, M-TRIBES is responsible for maintaining the contractually agreed quality of the software. In addition, M-TRIBES guarantees that no third-party rights conflict with the use of the software in accordance with the agreement.
6.2 If defects in the software occur, the customer is obligated to report these to M-TRIBES in writing, in text form (firstname.lastname@example.org).
The customer shall designate and notify M-TRIBES of one or more designated support contacts who, in the absence of exceptional circumstances, shall be the customer's exclusive point(s) of contact for M-TRIBES user support.
6.3 When reporting an error, the time, error class and further circumstances of the error shall be stated (if possible). The following error classes and response times by M- TRIBES are defined here:
Defect class 1 - operation-preventing defect
The defect prevents the customer's business operations. M-TRIBES shall begin to remedy the defect immediately after the error message has been issued, at the latest after two hours (provided the message is reported on working days from 8:00 am - 6:00 pm CEST), and shall continue to do so with vigour until the defect has been remedied, including outside of regular business hours where reasonable.
Defect class 2 - defect hindering operation
The defect considerably hinders the customer's business operations. However, the software can be used with workarounds or with temporarily acceptable restrictions or difficulties. In the event of an error message before 2 p.m. (on workdays), M-TRIBES begins to correct the error on the same day, and if the error is corrected later, it begins at the beginning of the next workday and continues to do so within normal business hours until the error is corrected.
Defect class 3 - other defects
M-TRIBES begins within one week with the elimination of the defect or only eliminates the defect with the next release of MotionTools, if this is reasonable for the customer.
6.4 Continuous maintenance of the software is generally guaranteed from Monday to Friday during regular business hours. The basic functions of the software are monitored continuously.
6.5 If there is an error of error class 1 - 3 according to Section 6.3 of these General Terms and Conditions and M- TRIBES does not rectify this error within a reasonable period of time, the customer shall be entitled to a reasonable reduction in the monthly rent for the product or service affected by the defect. The strict liability (i.e. without regard to negligence or intent) in accordance with § 536a Paragraph 1 Sentence 1 of the German Civil Code shall not apply.
7.1 Customer retains all rights and title to all data entered and/or uploaded into the Software on behalf of Customer (or any of its affiliates) or obtained through further processing of such data using the Software (collectively, the "Customer Data"). In this respect, personal customer data is processed by M-TRIBES as a processor on the instructions of the customer.
7.2 During the term of the contract, the customer can call up and export those customer data that M- TRIBES makes available using the standard functions provided by the software.
7.3 The customer is obligated to use the export functionality of the software to regularly (at least in the case of relevant changes to the customer data) create its own backup copies of the customer data, which are made available by M-TRIBES via the export interface. Such preventive measures against possible data loss are the responsibility of the customer.
7.4 For a period of seven (7) days after the end of the contract, the customer shall continue to have access to the customer data stored by M-TRIBES and can request this data via M- TRIBES (hereinafter referred to as the "period for data export"). The customer is responsible for exporting the customer data in a timely manner in order to secure it for future use. Transfers or exports of data that cannot be carried out with the standard functions of the software must be ordered in good time and require a separate agreement between M-TRIBES and the customer, which provides for appropriate remuneration for the corresponding working time of M- TRIBES employees. Upon expiration of the period for data export, M-TRIBES shall delete the customer data from its storage media and destroy all corresponding documents under its control, unless M-TRIBES is obligated to store this data for a longer period of time due to statutory retention obligations. In this case, M-TRIBES will delete the data after the expiry of the legal storage obligations.
7.5 Restoring or using such data copies after termination of the contract is not permitted. The customer can demand that M-TRIBES also deletes such backup copies, provided that the customer agrees to reimburse M-TRIBES for the costs incurred in this connection; this also includes reasonable compensation for the corresponding working time of M-TRIBES' employees.
7.6 M-TRIBES reserves all rights and claims to transaction and performance data related to the customer's use of the software, which M-TRIBES may collect and use for security, software optimization, and product marketing purposes, provided that such data and uses do not involve personal information about the customer or its affiliates or end users.
7.7 M-TRIBES provides an agreement on order processing (hereinafter referred to as the "GC agreement") with regard to the processing of personal data of the customer or its associated companies, which results in the obligations of the customer and M-TRIBES with regard to the processing of personal data that must be observed in accordance with data protection law.
8.1 The customer undertakes to pay the rent agreed in the software lease agreement to M-TRIBES on a monthly basis plus - if applicable - statutory value-added tax. Unless otherwise agreed, M-TRIBES shall issue an invoice to the customer at the beginning of each calendar month for the contracted monthly basic fees. All other usage fees or cost for additional services booked by the customer that may apply and any individual items that have accrued in that month will be invoiced at the end of the month.
8.2 M-TRIBES usually issues its invoices electronically in PDF format.
8.3 All payments are due upon receipt of the corresponding invoice by the customer. Late payments shall be subject to interest at a rate of eight percent (8%) above the applicable base rate. Late is defined as (7) days after invoicing.
8.4 The customer shall not be entitled to offset his own claims against claims of M-TRIBES arising from the contract (or to assert a right of retention), unless the customer's counterclaim remains
(a) not disputed by M-TRIBES,
(b) has been confirmed by a final judgment which is not subject to appeal; or
(c) has arisen from a defect in the goods or services for which M- TRIBES demands payment with its own claim against the customer.
8.5 M-TRIBES is entitled to exercise a right of retention and to suspend the performance of some or all of its obligations under the agreement if (and as long as) the customer does not make a payment due to M-TRIBES within two weeks of receiving a written reminder from M-TRIBES indicating M-TRIBES' intention to suspend performance if no payment is made.
8.6 The parties will attempt to structure their relationship in such a way that no withholding tax obligations will arise in respect of fees payable under the Agreement. However, if such obligations are unavoidable and it is not possible to obtain an exemption or reduction, the customer must deduct the applicable withholding tax amounts from his payments to M-TRIBES and prove to M-TRIBES that these amounts have been paid to the relevant tax authority.
9.1 The customer agrees that M-TRIBES may, at its own discretion, use third parties as subcontractors in the provision of its products or services under the agreement.
9.2 M-TRIBES shall inform the customer of any intended changes with regard to the addition or replacement of subcontractors in the context of data processing, thereby giving the customer the opportunity to object to these changes, insofar as the customer provides justified reasons for this.
9.3 If M-TRIBES commissions subcontractors to carry out specific processing of the customer's personal data, the same contractual obligations shall be imposed on this subcontractor as were agreed between the customer and M-TRIBES. This applies in particular with regard to the AV agreement.
9.4 M-TRIBES shall remain fully responsible for the fulfilment of all its obligations under the agreement in relation to all tasks that it has assigned to a subcontractor.
10.1 M-TRIBES shall provide and maintain the software to the customer in a condition suitable for use in accordance with the contract. Strict liability for damages for defects that were already present at the time the contract was concluded is excluded.
10.2 M-TRIBES shall be liable for damage caused to the customer by intent or gross negligence. M-TRIBES shall only be liable for slight negligence if the damage caused by this is based on a material breach of duty, the fulfilment of which is essential for the proper execution of the agreement and on the observance of which the customer may regularly rely (cardinal duty), as well as for damage resulting from injury to life, body or health. M-TRIBES shall owe the care that is customary in the industry; when examining whether M-TRIBES is at fault, the special feature that software cannot be created without technical errors shall be taken into account.
10.3 In the cases mentioned in section 10.2 of these GTC, the liability of M-TRIBES is limited to the typical and foreseeable damage for the respective type of contract. The maximum amount for this liability is € 100,000 per damaging event and € 250,000 for all damaging events occurring in one calendar year.
10.4 The liability of M-TRIBES for loss of profit is completely excluded, with the exception of the cases mentioned in section 10.2 of these GTCs.
10.5 M-TRIBES is not liable for the loss or damage of data or programs to the extent that the loss or damage could have been avoided or mitigated by appropriate measures taken by the customer (including the customer's own creation of backup copies).
10.6 The above provisions on liability also apply to vicarious agents of M-TRIBES.
11.1 M-TRIBES contracts begin on the date of signing of the contract, unless the parties have agreed on a different date as the beginning of the contract.
11.2 The minimum contractual period for M-TRIBES contracts (i.e. MotionTools Subscription) is one month unless otherwise agreed. Both parties have the right to terminate the contract with a notice period of 15 days to the month's end unless otherwise agreed. In cases of doubt, the termination of the main contractual service shall also terminate all ancillary/additional services/contractual relationships.
11.3 The right of the parties to terminate the contract for good cause without observing a notice period remains unaffected. A good cause for termination of the agreement on the part of M-TRIBES exists in particular if the software is used for other purposes or to a different extent than regulated in accordance with section 2 of these General Terms and Conditions, or if the software is transferred to third parties contrary to section 3 of these General Terms and Conditions.
11.4 At the request of the customer to be issued in text form until two weeks before the termination date, M-TRIBES shall support the customer and/or a third party supplier selected by the customer before and/or after the termination of the contract by providing access to the customer data in accordance with section 7.2 of these General Terms and Conditions for a reasonable fee according to the time and effort involved. However, M-TRIBES is not obliged to disclose or transfer computer programs or the code of the software, whether in the form of object code or source code.
11.5 All provisions of the contract, which by their nature are to continue to apply after the termination of the contract, remain unaffected by the termination of the contract. This applies in particular to any claims for damages between the parties.
12.1 "Confidential Information" shall mean all information marked as "confidential" or oral information that is later confirmed in text form (e.g. by e-mail) and marked as confidential, as well as information whose confidential character results from its content or from the circumstances under which it was disclosed.
Confidential information includes the content of any commercial agreements between the parties. If there is any doubt as to the confidentiality of the information, the Party considering disclosing such information shall contact the other Party immediately to seek clarification, and in any event before disclosing the information to third parties.
12.2 Information shall not be considered confidential if (a) it was known prior to disclosure by the other party; (b) it was independently developed without recourse to or use of information of the other party; (c) it was lawfully obtained from third parties who, to the best knowledge of the party, were not bound by a confidentiality obligation towards the other party; (d) such information becomes publicly available without breach of confidentiality provisions contained in the Agreement or other provisions protecting the business secrets of the Parties; or (e) such information must be disclosed pursuant to an order issued by a governmental or judicial authority or pursuant to the disclosure requirements for companies listed on a stock exchange. In the latter case, the disclosing Party shall inform the other Party of the disclosure without undue delay.
12.3 Each Party undertakes to treat the Confidential Information of the other Party as confidential and to exercise at least the same care in protecting the Confidential Information vis-à-vis the other Party as it exercises in protecting its own Confidential Information (but in any event no less than reasonable care).
12.4 The above obligation of secrecy shall apply for the agreed term of the contract and for a further period of 5 years after termination of the contract.
13.1 Neither party shall be liable for any failure to perform any obligation under this Agreement if such failure is due to force majeure (including, but not limited to, acts or directives of government, acts of God, terrorism, war, riot, insurrection, revolt or civil war, floods or embargoes) beyond the reasonable control of the affected party ("Force Majeure"). In such cases, the affected party shall promptly notify the other party of such circumstances, together with any evidence thereof, and performance of the obligations under this Agreement shall be suspended for the duration of, but no longer than the duration of the existence of such cause and the period reasonably required for the performance of the affected obligations in such cases.
13.2 If a cause of force majeure relating to any material obligation of the affected party continues for more than one (1) month, the parties will discuss in good faith the performance of each party's obligations.
14.1 M-TRIBES is entitled to use the name and logo of the customer for reference purposes in its own advertising materials such as the website, trade fair presence, brochures, newsletters, etc. If such use of the customer's brand is subject to certain guidelines, the customer must report this to M-TRIBES in text form (e.g. by e-mail).
14.2 Use of the Customer's name and/or logo in press releases to external distributors and/or in case studies may only be made with the Customer's prior consent.
If any provision of the Agreement is or becomes invalid or is declared invalid by any competent authority or court, all other provisions of the Agreement shall remain in full force and effect and the parties agree in good faith to replace the invalid or void provision with a valid and enforceable provision that most closely approximates the original provision.
16.1 The exclusive place of jurisdiction for all claims, disputes or controversies arising out of or in connection with the contract ("legal disputes") shall be Hamburg, Germany, unless another jurisdiction is mandatory by law.
16.2 All disputes shall be settled under the substantive law applicable in Germany (excluding any reference to or recourse to other jurisdictions). The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (UN Sales Convention) shall not apply.
M-TRIBES may only change or cancel the terms of the contract with the consent of the customer. This also applies to the amendment or cancellation of this clause. The consent of the customer shall be deemed to have been given if
a) M-TRIBES shall inform the customer of the proposed changes in text form (e.g. by e-mail) with a notice period of four weeks before a planned change is made, and
b) the customer does not object to the change in text form (e.g. by e-mail) before the change takes effect. In its notification to the customer, M-TRIBES shall expressly inform the customer of this effect.