General Terms and Conditions
Fair and sustainable relationships with our customers are the nuts and bolts for us. Our terms and conditions are therefore based on the recommendations of the German IT association BITKOM, which have been developed by industry experts and take into account the interests of both customers and suppliers.
§ 1 General subject matter of the contract
1.1 The following agreements regulate the provision of a software application, subsequently referred to as “Pivian” by Ailola GmbH. The Customer obtains the technical possibility and authorization to access Pivian, which is hosted on the servers of Ailola GmbH, over the Internet, and for the use of Pivian’ functionalities as a part of this contract.
1.2 For this purpose, Ailola GmbH makes available the software application for use at the domain www.pivian.com for the Customer and the users who are authorized by him. One respective instance of this software application will be referred to as “Pivian instance” or simply as “instance” in the following.
1.3 The “Customer” is a natural or juridical person, and with his acceptance of these General Terms and Conditions and the registration of his own Pivian instance he concludes a contract with Ailola GmbH that is based upon these General Terms and Conditions.
1.4 A “User” is every natural person who is associated with the Customer in his capacity as legal representative, employee, commissioned service provider or otherwise associated, and who has been provided by the Customer with login credentials (e.g. user name and password) for use on the Customer’s instance, or has been otherwise authorized for use by the Customer.
1.5 Users who have registered a new Pivian instance for the Customer they represent or who have been appointed as an administrator by another administrator shall be considered as an “Administrator”. All administrators are able to revoke the administration privileges of other administrators, and in turn thereby appoint them as regular users who are not administrators.
1.6 The offer of Ailola GmbH is not aimed at consumers as defined in the § 13 BGB (German Civil Code). The Customer guarantees not to act as a consumer.
§ 2 Services and Prices
2.1 Ailola GmbH provides the Customer with Pivian – an operational software application – which the Customer can use to execute and evaluate measures for lead generation using inbound content marketing. Pivian is considered ready for operation as soon as Ailola GmbH has notified the Customer of its activation (access to the operationally ready Pivian).
2.2 Pivian comprises for each Customers a custom Resource Center for the integration into their website as well as administration functions for the management of custom content, for the creation of forms to generate leads, for the capturing and forwarding of lead records and for the evaluation of marketing measures.
2.3 Ailola GmbH reserves the right, at its own discretion and without previous announcement, to change individual parts of the functionalities as well as to add functions or to remove function parts. The removal of a previously available function part of Pivian does not represent a defect, as long as the general functions mentioned in the preceding clause continue to be available.
2.4 Ailola GmbH regularly implements comprehensive data backups at its own discretion, yet at least once per day, and these are stored at a geographically remote and secure location (offsite backup). In the event of data loss for which Ailola GmbH is to be held accountable, it shall immediately restore the data from the data backup, and the Customer will be informed of the occurrence. The Customer shall not be entitled to access the data backup in the event that Ailola GmbH cannot be held accountable for a data loss.
2.5 The Customer has the option of exporting and downloading his own lead records via the administration area of his Pivian instance.
2.6 The scope of contractual service does not encompass the adherence to archiving obligations, e.g. long-term data backups serving a commercial or tax-related purpose, for which the Customer is responsible.
2.7 The access to Pivian is realized via the Internet. Requirements for the use of Pivian are a computer with Internet access and a current Internet browser as well as client programs, e.g. for data processing, etc., as the case may be. The provision of these requirements as well as the telecommunication services, including the transmission services from the service transfer point to the terminals that are used by the Customer, are not the subject matter of this contract; they are the responsibility of the Customer.
2.8 Ailola GmbH is at all times entitled to maintain and service software and/or hardware systems and to perform data backups. In case of foreseeable unavailabilities, Ailola GmbH will carry out these activities outside of regular business hours or on weekends, as far as is possible. The scope of contractual service does not guarantee availabilities (SLAs), insofar as the Customer has not concluded a separate contract for this with Ailola GmbH.
2.9 The prices for Pivian can be found in the price list on the website of Ailola GmbH (http://www.pivian.com/en/prices/). The prices are based on various plans that are defined by function scope (e.g. domain mapping) and usage volumes (e.g. user accounts, data records, storage space). Ailola GmbH reserves the right to change individual plans or to discontinue offering them. The provisions for plan change and cancellation in accordance with § 11 shall apply.
§ 3 Right of Use
3.1 The Customer and the users authorized by him obtain the non-exclusive right, limited to the term of this contract, to access Pivian via the Internet and to use it by means of a browser and, as the case may be, additional client programs related to Pivian functionalities in accordance with this contract. Rights extending beyond this, particularly to Pivian, the software application or the operating software, are not obtained by the Customer and the users, not even in the case when functions or function parts have been developed for the Customer.
3.2 The Customer is not entitled to use Pivian beyond the authorized use according to this contract or to grant such use to third parties. In particular, the Customer is not authorized to duplicate, to sell or to make available for a limited period of time, and primarily not to rent out or lend Pivian or parts thereof.
3.3 The Customer is responsible for naming the authorized users of his Pivian instance. The naming is carried out by creating an active user account via an administrator. In every case, all of the active users that are listed in the administration area of the Pivian instance shall be considered as named by the Customer.
3.4 In the event of the unauthorized grant of use, the Customer has to provide to Ailola GmbH all the information for filing claims against the user immediately upon demand, in particular to notify his name and address.
3.5 If usage of Pivian in accordance with this contract should be impaired by industrial property rights of third parties, without any fault on the part of Ailola GmbH, then Ailola GmbH shall be entitled to refuse the services affected by this. Ailola GmbH will immediately notify the Customer about this and provide him with access to his data in a suitable manner. In this case, the Customer is not obligated to pay. Other claims or rights of the Customer remain unaffected.
§ 4 Data Privacy and Data Security
4.1 All parties shall observe the respectively applicable data privacy provisions, particularly those that apply in Germany and shall obligate those persons assigned in connection with this contract to data secrecy in accordance with § 5 Bundesdatenschutzgesetz (BDSG, German Federal Data Protection Act), insofar as these are not already generally obligated in this regard.
4.2 If the Customer himself, or via Pivian, collects, processes or uses personal data, then he assumes responsibility that he is authorized to do this in accordance with the applicable provisions, particularly data privacy provisions, and he shall indemnify Ailola GmbH in the event of third-party claims.
4.3 It is made clear that the Customer remains the data owner, generally in the contractual relationship as well as in the sense of data privacy (§ 11 BDSG). The Customer is the sole proprietor in regard to the right of handling and the ownership of all Customer-specific data (entered data, processed, stored data, output data). Ailola GmbH carries out no controls of the data and contents stored for the Customer in regard to a legal permissibility of the collection, processing and use; this is the sole responsibility of the Customer. Ailola GmbH is only entitled to process and/or use the Customer-specific data exclusively upon instructions from the Customer (e.g. for the compliance with deletion and blocking obligations) and within the framework of this contract; Ailola GmbH is particularly not permitted to make available to third parties, in any manner whatsoever, Customer-specific data, without the prior written consent of the Customer. This also applies if and to the extent that a change or a supplement of Customer-specific data occurs. However, Ailola GmbH is entitled to process and use the data of the Customer (e.g. accounting data for the invoicing of services to the Customer) within the bounds of data privacy during the validity period of this contract.
4.4 The software application, server and operating software as well as other system components of Pivian are operated by third parties in one or several data centers. The data centers are located within the Federal Republic of Germany. Ailola GmbH is entitled to award subcontracts, yet it must impose upon the subcontractor the obligations according to the preceding clause.
4.5 Ailola GmbH shall take the technical and organizational security precautions and measures in accordance with the Annex to § 9 BDSG. As a rule, the Customer is not entitled to demand access to the premises with the software application, server and operating software as well as other system components of Pivian. This shall not affect the access rights of the Customer’s data protection officer to verify, after prior written announcement, the compliance with the requirements according to the Annex to § 9 BDSG as well as the other handling of the personal data by Ailola GmbH in ways that conform to the law and the contract within the framework of operating Pivian in accordance with this contract.
§ 5 Obligations and Responsibility of the Customer
The Customer is to fulfill the contractual obligations for the performance and delivery of services. In particular:
5.1 The payment of agreed prices on the due dates. For each unpaid or returned direct debit order or credit card charge, the Customer must reimburse Ailola GmbH for these costs incurred in full, to the extent of his responsibility in such incurrence of expenses;
5.2 The naming of all authorized users of Pivian in accordance with § 3.3. Moreover, the Customer shall be obligated to name all changes in the assignment of the user that are caused by organizational changes, employee changes or similar, as appropriate in the administration area;
5.3 Protection of his or the users’ login credentials assigned for use and access, as well as identification and authentication securities, against access by third parties and not to make them available to unauthorized users;
5.4 Ensuring the observance (e.g. when adopting texts and data of third parties on servers of Ailola GmbH) of all intellectual property rights;
5.5. Obtaining the required consent of the respective affected party, provided that when using Pivian he collects, processes or uses personal data, and no statutory permission is applicable;
5.6 Not to abuse Pivian or allow it to be abused, in particular, to not convey any information with unlawful or unethical content or to indicate information that serves incitement to hatred, leads to criminal offences or glorifies or trivializes violence, is sexually indecent, is pornographic, or which may have the potential to undermine the morality of children or young persons or to adversely affect their well-being, or which could damage the reputation of Ailola GmbH;
5.7 Refraining from obtaining, by himself or through unauthorized third parties, information or data without authorization, or intervening in or allowing others to intervene in programs operated by Ailola GmbH, or invading networks of Ailola GmbH without authorization;
5.8 Not to make any improper use of the exchange of electronic messages for the unsolicited sending of messages or information to third parties for advertising purposes (spamming);
5.9 Indemnifying Ailola GmbH against all third-party claims that result from an unlawful use of Pivian by him, or that occur with his approval, or in particular that arise from disputes relating to data protection law, copyright or other legal disputes associated with the use of Pivian. The Customer is obligated to notify Ailola GmbH without undue delay, if he is or should be aware that such a violation is imminent;
5.10 Secure the data transmitted to Ailola GmbH regularly and according to risk and create your own backup copies to ensure in the event of loss of data and information the reconstruction thereof;
5.11 Prior to sending data and information, check them for viruses and use state of the art virus protection programs;
5.12 Compensation of Ailola GmbH for all expenses incurred through inspection of a malfunction report when it is determined that in fact there was no technical malfunction within the equipment of Ailola GmbH, and the Customer could have recognized this after reasonable troubleshooting;
5.13 Placing the authorized users under obligation in accordance with § 1, on their part for the use of Pivian with adherence to the provisions listed in § 5.3 to 5.8, 5.10 and 5.11;
5.14 Until the point in time when the contract expires, to backup his existing data in the system via download, since it cannot be ruled out that after the contract expires the Customer is no longer able to access the data.
§ 6 Use in Violation of the Contract
6.1 Ailola GmbH shall be entitled, in the case of a violation of the law by the Customer or the users named by him against one of the important obligations established in this contract, particularly violations against the obligations named in § 5.6. – 5.8, to block access to Pivian and its data. The access will once again be restored, but only if the violation against the affected important obligation has been permanently eliminated, or if the danger of repetition by the Customer against Ailola GmbH can reliably be ruled out via an appropriate cease-and-desist declaration that carries a penalty. In such a case, the Customer remains obligated to pay the recurring prices.
6.2 Ailola GmbH shall be entitled, in the case of a violation of § 5.6 – 5.8, to delete the affected data.
6.3 If there is a culpable violation on the part of the Customer in the case of § 6.1 and § 6.2, then the Customer is obligated to pay compensation. If the Customer is able to prove that there is no damage, then he has no obligation of paying compensation for damages. Ailola GmbH reserves the right to assert other claims for compensation.
6.4 In the case of a violation of the law against one of the obligations established in § 5.6 – 5.8 on the part of a user, the Customer must communicate to Ailola GmbH, immediately upon request, all data for asserting the claim against the user, particularly his name and address.
§ 7 Conditions of Payment
7.1 Recurring prices (e.g. monthly, yearly) are, beginning with the day of the provision as operationally ready after the end of a potentially granted cost-free trial period, to be paid in advance, each for the duration of the respective period of use (e.g. a month, a year). If a price is to be calculated for a part of a calendar month, then each day shall be calculated as 1/30 of the monthly price.
7.2 Other prices are to be paid after performance of the service.
7.3 Insofar as no direct debit procedure or credit card charge has been agreed upon, the invoiced amount must be credited to the bank account stated on the invoice at no cost and within ten days of receiving the invoice at the latest.
§ 8 Default
8.1 During a default in payment by the Customer involving a significant amount of money, Ailola GmbH shall be entitled to block the access to Pivian. In this case, the Customer remains obligated to pay the recurring prices.
8.2 If the Customer should be in default
- with the payment of the price or a substantial part thereof for two consecutive months, or
- in a period of time extending over two months with a payment amounting to charges for two months,
then Ailola GmbH shall be entitled to terminate the contract without notice and to demand an immediate compensation as a lump-sum payment that amounts to one-fourth of the recurring charges payable up to the end of the regular term of the agreement.
8.3 The amount of damages shall be higher or lower, if Ailola GmbH proves that the loss suffered was greater or the Customer proves that it was less, respectively.
8.4 Ailola GmbH reserves the right to assert further claims due to default in payment.
8.5 Should Ailola GmbH be in default with the operational provision, the liability shall be in accordance with § 9. In such a case, the Customer shall only be entitled to withdrawal from the contract, if Ailola GmbH does not adhere to a reasonable grace period set by the Customer, which must amount to at least two weeks.
§ 9 Liability
9.1 Ailola GmbH shall be held liable without limitations by the Customer, in the case of intent or gross negligence for all damages caused by it as well as its legal representatives or vicarious agents.
9.2 In the event of slight negligence, Ailola GmbH shall be subject to unlimited liability in cases of damage to life, limb or health. Moreover, Ailola GmbH shall only be liable insofar as it has violated an essential contractual obligation (cardinal duty). In such cases, the liability is limited to the reimbursement of the foreseeable, typically occurring damages. For an individual case of damage, the liability shall be limited to the contract value; if recurring amounts are being paid, to the amount of compensation per contract year. Additionally and most important, the liability of Ailola GmbH, or damages and reimbursement of expenses due to slight negligence – regardless of the legal basis – shall be limited to a total of 100 per cent of the agreed reimbursement at the conclusion of the contract. The liability in accordance with § 9.1 and 9.2 (1) remains unaffected by this clause.
9.3 The strict liability of Ailola GmbH for compensation of damages (§ 536 a BGB) for defects existing at the time of contract conclusion shall be excluded. § 9.1 and 9.2 remain unaffected.
9.4 The liability pursuant to regulations of the Produkthaftungsgesetz (German Product Liability Act) remains unaffected.
§ 10 Force Majeure
10.1 Ailola GmbH shall be exempt from performing its service under this agreement, if and when the non-performance of services is due to the circumstances of force majeure following the conclusion of this contract.
10.2 Examples of force majeure include war, strikes, unrest, expropriation, substantial changes in law, storms, floods and other natural disasters as well as other circumstances beyond the power of Ailola GmbH, especially water penetration, power cuts and interruptions to or destruction of lines transmitting data.
10.3 Each contracting party is to inform the other contracting party immediately in suitable form on the occurrence of force majeure circumstances.
§ 11 Start and Term of Contract, Cancellation, Plan Change
11.1 The contract shall become effective via registration of a Pivian instance. If a cost-free trial period or entirely cost-free use has been granted, then the contract automatically ends with its expiration. No obligation of payment results from this. If the Customer orders a fee-based use of Pivian, then the contract is automatically renewed for the duration of a usage period respectively. Insofar as no other time period is agreed upon, the duration of a usage period is one month.
11.2 The Customer can terminate the contractual relationship at any time. The contract ends at the point in time when the termination is received by Ailola GmbH. Otherwise, the contract is renewed for the duration of a usage period respectively. In the case of a termination by the Customer, the Customer must pay the full price for the then-current usage period, which is not reimbursable. Ailola GmbH can terminate the contractual relationship at any time with notice of one month effective at the end of the current usage period.
11.3 The right to termination for an important reason remains unaffected. The right of the Customer to terminate the lease extraordinarily without notice when all or part of the leased object is not provided in time or has been withdrawn, is excluded (§ 543, paragraph 2, point 1 of the BGB).
11.4 The Customer can change to a different plan at any time. The feature set and usage volumes will be immediately adjusted according to the new plan. If the duration of a usage period is one month, then the price of the new plan will be charged only starting with the subsequent usage period. Otherwise, the difference between the old and the new price will be charged or reimbursed, provided that no discounts had been previously granted. A refund in the case of a downgrade is not possible.
11.5 All terminations and plan changes in accordance with this contract must be made via the administration area within the Pivian instance of the Customer or in writing.
§ 12 Confidentiality
The contractual parties oblige to treat corporate and business secrets confidential that they – including their agents – obtained during the negotiation or the fulfillment of the contract. These obligations do not apply to information, knowledge and experience which
- demonstrably are public domain without breach of this confidentiality obligation,
- already have been known demonstrably by the parties before receipt of the information, knowledge and experience,
- have been obtained from a third party without a duty of confidentiality or,
- demonstrably have been independently elaborated.
§ 13 Final Provisions
13.1 The Customer may only assign the rights and obligations from this contract to third parties after the previous written consent of Ailola GmbH. Ailola GmbH, however, is entitled to assign the rights and obligations from this contract to a group company in accordance with § 15 Aktiengesetz (German Stock Corporation Act).
13.2 Ailola GmbH reserves the right to amend these General Terms and Conditions at any time. Customers and users will receive the amended General Terms and Conditions in an appropriate way, e.g. by email or via prominent display within Pivian. The amended General Terms and Conditions shall be deemed agreed unless the respective Customer or user objects to their taking effect within 14 days from such notice. The objection must be issued in writing. In such case, Ailola GmbH reserves the right to terminate the contract at the end of the current usage period.
13.3 German law shall apply to the contractual relationships. The place of jurisdiction is Bonn.
Last updated: December 5th, 2014