Terms and Conditions

Updated 02/07/2020

Terms and Conditions

1. Scope of application, validity of third-party general terms and conditions, conclusion of contract

1.1. Unless otherwise expressly regulated in individual cases, the business relationship between:

PBC Ventures UG,

Denickestraße 4,

21073 Hamburg (hereinafter "Provider")

and the users of the platform (hereinafter "users") is governed exclusively by the provisions of these General Terms and Conditions (hereinafter "T&C").

1.2. The validity of the user's general contractual or business conditions is expressly excluded. This also applies if the provider has not expressly contradicted the user's terms and conditions and/or provides services without contradiction.

2. Subject of the contract, booking of a license

2.1. The object of the contract is the online provision of the platform (hereinafter referred to as "software") for the use of its functionalities, the technical enabling of the use of the software and the granting of rights of use to the software as well as the provision of storage space for the data generated by the user through the use of the software and/or the data required for the use of the software (hereinafter referred to as "application data") by the provider to the user against payment of the agreed remuneration (so-called software as a service).

2.2. The specification of the software according to docs.generato.com is conclusively decisive for the quality of the software.

2.3. The software requires at least the hardware and software environment specified under the following link: docs.generato.com to be executable. The establishment of a functional hardware and software environment for the software that is sufficiently dimensioned, also taking into account the additional load by the software, is the sole responsibility of the user.

2.4. As part of the provision of the software in its dashboard, the user shall receive documentation of the software in the form of an electronic user manual (hereinafter "Documentation").

2.5. The User shall be entitled to store and print out the documentation provided while maintaining existing property right notices and to reproduce such documentation in reasonable numbers for the purposes of these T&C. In all other respects, the restrictions of use agreed for the software shall apply accordingly to the documentation.

2.6. The delivery or provision of hardware is not subject matter of the contract.

2.7. The booking of a user licence is handled by the service provider Paddle via the paddle.com platform. The relevant Paddle terms and conditions shall apply.

3. Provision of the software and storage space for application data, opening of accounts, changes in the functionality of the software

3.1. The provider provides the software in the respective current version for use on one central data processing system or several data processing systems (hereinafter, also in the case of multiple "servers") in accordance with the following provisions from the time a user license is booked

3.2. The user automatically creates an administrator as user (hereinafter "Account") when booking the user license. After completion of the complete registration process, the User has the option of creating additional users (hereinafter “End Users") and inviting them to use the Software via their e-mail address. Each User shall set up a user name and user passwords (hereinafter collectively referred to as “End User Data"). Alternatively, a log-in via an external service (e.g. GoogleSign-in) is possible.

3.3. The user assures that he/she will only invite persons as end users if he/she is authorised to do so. Before sending the invitation, the user is obliged to ensure that the end user agrees to receive the invitation. In the event that the end user asserts claims against the provider due to unsolicited sending of the invitation, the user shall indemnify the provider to this extent from all claims in connection with the sending of the invitation.Generato reserves the right to assert further claims against the user in this respect.

3.4. The user can restrict or delete the end user at anytime via his account.

3.5. If and to the extent that the provision of a new version or a change in the software is accompanied by a change in the functionality of the software, in the user's work processes supported by the software and/or in restrictions in the usability of previously generated data, the provider will notify the user in writing at least six weeks before such a change takes effect. If the user does not object to the change in writing within a period of two weeks after receipt of the notification of change, the change will become part of the contract. The provider will inform the user of the aforementioned deadline and the legal consequences of its expiration if the user does not exercise his right to object.

3.6. The provider provides storage space on the server for the application data from the moment a usage license is booked.

3.7. The software and application data are backed up on the server on a regular basis, at least every calendar day. The user is responsible for compliance with commercial and tax law retention periods.

3.8. The transfer point for the software and application data is the router output of the the providers data center.

4. Rights of use of the software

4.1. THe provider grants the user the simple, non-exclusive, non-transferable, non-sublicensable, non-sub-licensable right, limited in time to the term of the contract, in terms of content to use the software to the extent specified in the service description at docs.generato.com, in particular with regard to the lines of code, for the presumed contractual purpose in accordance with the following provisions.

4.2. The provider hereby informs the user that open source components from third parties (hereinafter referred to as "OSS") are used within the framework of the software. The user acknowledges that OSS is subject to the provisions of the respective OSS licence of the third-party providers. Item 4.1 shall not apply to the OSS used. The conditions of the respective OSS licence apply to OSS. If the conditions of the applicable OSS licences require the provider to make an offer to provide the source code of the OSS used in conjunction with the software, such an offer is hereby made. Upon written request, the provider will provide the user with the source code of the relevant OSS against reimbursement of the data carrier shipping costs.

4.3. There is no physical transfer of the software to the user.

4.4. If the provider provides the user with additions (e.g. patches, additions to the documentation) or a new edition of the software (e.g. update, upgrade) during the term of the contract, these are subject to the provisions of these T&C.

5. User obligations for safe use

5.1. The user shall take the necessary precautions to prevent the use of the software by unauthorized persons.

5.2. The user is liable for ensuring that the software is not used for racist, discriminatory, pornographic, youth protection endangering, politically extreme or otherwise illegal purposes or in violation of official regulations or requirements, or that corresponding data, in particular application data, is not created and/or stored.

6. Revisions of the software; decompilation

6.1. The user is not entitled to process the software, in particular to modify, translate, reverse engineer, further develop, decompile or disassemble and redesign the software, unless permitted in this clause 6 or unless a statutory permit is granted.

6.2. Reworking is permissible if it is necessary for the rectification of a defect and the provider is in default with the rectification oft he defect, the provider refuses to rectify the defect without justification or is unable to rectify the defect immediately for other reasons attributable to its area of responsibility.

6.3. The user may not commission third parties who are competitors of the provider with measures according to section 6.2, unless the user can prove that the risk of disclosing important company and business secrets of the provider is excluded.

6.4. Decompilation of the software is only permitted if the requirements and conditions specified in § 69e para. 1 UrhG (German Copyright Act) are met. The information thus obtained may not be used or passed on contrary to the provisions of § 69 e para. 2 UrhG.

6.5.Software markings, in particular copyright notices, trademarks, serial numbers or similar may not be removed, altered or made unrecognisable unless the provider has given its prior written consent.

6.6. The provider remains the owner of all rights to the software, even if the user modifies the software or combines the software with its own programs or those of a third party. The documentation provided to the user also remains the exclusive property of the provider.

7. Transfer of the software to third parties

7.1. The user shall not, without the prior written consent of the provider, be entitled to transfer the software and documentation, the access to the software, any copies of the software and documentation provided to the user, or any back-up copies made, to any third party. In particular, the users hall not sell, loan, rent or otherwise sublicense the software or access to he software or documentation, or reproduce or make available to the public the software or documentation.

7.2. The user may only use the software for his own business activities by his own personnel. The dependent use by the User's employees or other third parties subject to the User's right to issue instructions within the scope of the intended use is permissible.

8. Violations of the provisions of paragraphs 5, 6, 7

8.1. If the user violates the provisions of clauses 5, 6 or 7 for reasons for which he/she is responsible, the provider may, after prior notification of the user, block the user's access to the software or application data if the violation can be proven to have been remedied.

8.2. If the user unlawfully violates clause 5.2, the provider is entitled to delete the data and application data affected thereby.

8.3. If the user continues to violate or repeatedly violates the regulations according to clauses 5, 6 or 7 despite a written warning from the provider, and if the user is responsible for this, the provideris entitled to terminate the contract without notice on an extraordinary basis.

8.4. For each case in which the user culpably enables the use of the software by third parties, the user shall pay an immediately payable contractual penalty, the amount of which is determined by the provider at its reasonable discretion and can be reviewed by the competent court at the request of the user. Generato reserves the right to claim damages; in this case the contractual penalty will be offset against the claim for damages.

9. Rights to the generated code

9.1. The provider grants the user the simple, non-exclusive, transferable, sub licensable right, unlimited in time, content and place, to use the software code generated within the scope of the use of the software.

9.2. The provider hereby advises the user that the software code generated within the scope of the use of the software may contain open source components from third parties (hereinafter "OSS"). The conditions of the respective OSS licence apply to OSS. The individual OSS will be reloaded directly from the third-party provider when the generated software code is integrated

10. Rights to the contents of the user, rights to databases

10.1. The user grants the provider the simple, spatially, temporally and content-unlimited right of use to the content posted and created by the user in the course of using the software (hereinafter "user content"). This includes, in particular, the right to reproduce, use, operate, copy, publicly perform or display, distribute, modify, translate and create derivative versions of the distribution as well as the right to edit.

10.2. The user guarantees that he is the owner of the transferred rights and that he is able to effectively grant the rights mentioned in paragraph 10.1. The user also guarantees that the created user content does not violate any rights of third parties, in particular trademark, competition, copyright, property or personal rights.

10.3. The provider is exclusively entitled to all rights to any databases created by entering user content in the software or by the user'sother use of the software.

11. Account usage, sanctions and blocking of the account

11.1. The user commits himself:

a. not to create insulting, violence glorifying, discriminating, inhuman or defamatory user content;

b. not to create pornographic or racist user content;

c. not to create user content that violates youth protection laws or criminal laws;

d. not to perform any actions that could block, overload or impair the proper functioning or appearance of the Software (e.g. denial of service attacks or the uploading of viruses or other malicious code);

e. not to access the software through automated mechanisms (such as bots, robots, spiders or scrapers) or in any other way than that intended, unless explicit prior permission has been obtained from Generato;

f. not to use legally protected content without being entitled to do so.

11.2. The provider has the right to irretrievably delete user content that violates these terms and conditions, violates the applicable rules of courtesy, etiquette, objectivity and respectful treatment of each other or is otherwise offensive and/or inappropriate. In this respect, the user has no claim to the reinstatement of already deleted user content. In the aforementioned cases the provider is also entitled to temporarily or permanently block the account in question

11.3. If the user violates these T&C or legal regulations, the provider

a. Modify or delete user content;

b. terminate the contract without notice;

c. restrict the respective account temporarily or permanently.

11.4.  The provider may impose these sanctions without prior notice and without consulting the user, even against the user's express will.

12. Confidentiality of access data

12.1. The user is obliged to keep the login data, passwords, etc. secret and not to pass on user data to unauthorized third parties and to log out after each session. Statements and actions which are made or committed after a login with user data or other names and passwords of the user can be attributed to the user even if he has no knowledge of them. Attribution shall be made in particular if the User intentionally or negligently provides access to the password or the account to third parties (including members of the company). The user must inform the provider immediately as soon as he/she becomes aware that unauthorised third parties have access to the access data and are aware of it.

12.2. In the event of a justified suspicion that access data has become known to unauthorized third parties, the provider is entitled but not obliged, for security reasons, to independently change the access data at its own discretion without prior notice or to block the use of the account. The provider will inform the user of this without delay and, upon request, provide new access data within a reasonable period of time. The user has no right to demand that the original access data be restored.

13. Support

13.1. The scope of support is based on the user license booked by the user according to the service description at docs.generato.com.  

13.2. The provider provides support on weekdays (Monday to Friday) in the time between 9.00 am and 5.00 pm (hereinafter "service hours").

13.3. The provider will set up a ticket system via chat and e-mail (hereinafter "ticket system") to report defects for the user.

13.4. The user will notify the provider of a defect via the provider's ticket system, or other intended channels and provide the provider with all the information necessary for an analysis of the fault and for narrowing down the cause of the fault (hereinafter "notification"). The user must describe the circumstances of the occurrence of the defect and its effects in the notification. The message should enable the fault to be reproduced. In particular, the notification shall precisely describe the defect (conditions under which it occurs, symptoms and effects of the defect). The user must provide the provider with at least the following information:  

a. Description of the error,

b. Text of the error message, if available,

c. Description of the system and hardware environment,

d. Time at which the defect occurred,

e. User ID.

13.5. Statutory obligations of the user to examine and give notice of defects remain unaffected.

13.6. the provider will eliminate defects and malfunctions oft he software which occur during the term of this licence agreement in accordance with the terms of this licence agreement during the service hours.The manner in which defects are remedied is at the reasonable discretion of the provider.

13.7. A defect does not (in particular) exist if

a. the existence of a disruption has only an insignificant effect on the use of the software;

b. a disturbance was caused by improper handling of the software;

c. the cause of a malfunction does not lie in the software, but is caused by other causes which are not within the sphere of the provider (e.g. client-side system crash or similar).

13.8. If the provider offers the user new software parts, in particular patches, bug fixes, updates, upgrades, new releases, new versions etc. in order to avoid or eliminate defects, the user must accept these.

13.9. The elimination of a defect can also take the form of instructions to the user. The user must follow such instructions.

13.10. If a defect in the software reported by the user does not exist, the provider is entitled to invoice separately for the expenses incurred if the user has misjudged the non-existence of a defect through at least gross negligence.

13.11. The provider is released from the obligation to provide services to the user if the user refrains from using the delivered problem solution of the software, unless the delivered version or problem solutions are demonstrably not executable.

14. Availability, predictable maintenance times, failures

14.1. The provider guarantees 99% availability of the software with a quarterly view. This does not include downtime which is not due to a breach of duty on the part of the provider, such as attacks on the provider's systems by third parties, hardware failures through no fault of the provider or cases of force majeure, as well as related unplannable maintenance work and plannable maintenance periods. Maintenance work, further development or malfunctions may restrict or temporarily interrupt the possibilities of use. This may also result in data loss under certain circumstances

14.2. Errors or malfunctions beyond the control of the provider are not subject to the provider's obligation to perform. The user remains obliged to pay the corresponding remuneration in the event of errors or faults outside the sphere of the provider's influence.

15. Payment, invoicing, terms of payment

15.1. The amount of the payment for the user license is based on the service description at docs.generato.com.

15.2. The user is only entitled to use the software beyond the usage rights granted in these T&Cs with the prior written consent of the provider. If the software is used in excess without the prior consent of the provider, the provider is entitled to charge a fee for the additional use, unless the user can prove that the damage incurred was significantly lower. Further non-contractual claims for damages remain unaffected.

15.3. The provider is entitled to increase the remuneration for the first time after the expiry of twelvemonths after the conclusion of the contract with a written notice of three months to the end of the month if and insofar as the costs incurred for the proper execution of the contract have increased. The user has the right to terminate the contractual relationship within a period of six weeks after receipt of the announcement. In the event of a reduction in the corresponding costs of the provider, the user can demand a corresponding reduction in the remuneration after the expiry of the period referred to in sentence 1

15.4. All other costs which may arise in connection with the use of the software (e.g. connection costs) are borne by the user and are not subject to these T&C.

15.5. All prices are subject to the statutory value added tax applicable at the time.

15.6. The method and time of payment shall be governed by the provisions of Service Provider Paddle.

15.7. The provider reserves the right to claim commercial interest on the commercial due date (§ 353 HGB) from users who are merchants within the meaning of the HGB.

16. Duties of cooperation of the user

16.1. Insofar as the user is not expressly granted any rights under these T&C, all rights to the software and documentation, in particular copyright, rights to or in inventions as well as technical property rights, are the exclusive property of the provider.  

16.2. The user shall require the authorized persons and users to comply with the provisions of these T&C applicable to them.

16.3. Before sending data and information to the provider and the servers, the user will check these for viruses and use state-of-the-art anti-virus programs.

16.4. The user has informed himself about the essential functional features of the software and bears the risk as to whether the software meets his wishes and needs; in case of doubt, the user has sought advice from the provider employees or from expert third parties prior to concluding the contract.

16.5. The user shall take reasonable precautions in the event that the software does not function properly, either in whole or in part, in particular by daily data backups, fault diagnosis and regular checks of the data processing results.

16.6. The User shall bear any disadvantages and additional costs arising from a breach of the obligations under this Section 16.

17. Term of contract, termination of the contract

17.1. The term of the contract is based on the respective user license according to the service description at docs.generato.com.

17.2. Unless otherwise agreed in the user licence, either party may terminate the contract by giving 14 days' notice.

17.3. The provider can terminate the contract without notice if the user is in default of payment of a significant part of the remuneration or, in a period of time that extends over more than two months, is in default of payment of an amount equal to the remuneration for two months.

17.4. The right of each party to terminate the contract for good cause remains unaffected.

17.5. Any termination must be made in writing. An e-mail to management@generato.com or other communication in text form to the provider is sufficient for the declaration of termination. Alternatively, the termination can also be made via the user's account.

18. Obligations at and after termination of the contract

18.1. The personal data and account as well as the application and user data provided by the user will be deleted by the provider upon termination of the contract. If the provider is obliged to retain data for legal or other reasons, the provider is entitled to block this data; if this right is no longer applicable, the data will be deleted by the provider.

18.2. In the event of termination of the contract, the user must destroy all backup copies that may have been made.

18.3. Any use of the software by the user after termination of the contractual relationship is not permitted.

19. Liability of Generato

19.1. Subject to the further provisions of this clause 19, the provider is only liable if and insofar as the provider, its legal representatives, executives, employees or other vicarious agents are guilty of intent or gross negligence. However, in the event of debtor default on the part of the provider or the impossibility of performance for which the provider is responsible as well as in the event of a breach of material contractual obligations (so-called cardinal obligations), the provider is liable for any culpable conduct on the part of the provider itself or its legal representatives, executives, employees or other vicarious agents. In this context, essential contractual obligations are abstractly defined as those obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the user can regularly rely.

19.2. Except in the case of intent or gross negligence on the part of the provider, its legal representatives, executives, employees or other vicarious agents, the provider liability is limited to the amount of damages typically foreseeable at the time the contract was concluded.

19.3. The exclusions and limitations of liability regulated in the above clauses 19.1 and 19.2 shall not apply in the event of the assumption of express guarantees, in the event of claims due to the lack of warranted characteristics and for damages resulting from injury to life, body or health as well as in the event of mandatory statutory regulations. Furthermore, the limitations of liability regulated in section 19.2 do not apply in the case of a debtor's default on the part of the provider to claims for default interest, for the default lump sum pursuant to § 288 para. 5 BGB (German Civil Code) or for compensation for damages caused by default, which are based on the legal costs.

19.4. Claims under the Product Liability Act remain unaffected by the provisions of this clause 19.

20. Data privacy

20.1. The parties shall observe the applicable data protection regulations, in particular those valid in Germany.

20.2. Insofar as the provider has access to individual data relating to specific or identifiable persons ("personal data") or must otherwise process such data on behalf of the user in order to provide the services, the parties will conclude a separate agreement on order processing, which will govern the rights and obligations of the parties with regard to the handling, in particular the processing, storage, modification, transmission, blocking or deletion of personal data. The order processing agreement can be accessed by the user in his account.

20.3. Furthermore, the privacy policy applies: https://www.generato.com/privacy

21. Confidentiality

21.1. The parties undertake to keep all protected or confidential information of the respective other party secret from third parties, even after the end of the contractual cooperation, and not to pass it on to third parties or exploit it, unless this is necessary for the implementation of the contractual cooperation. Protected or confidential information of the parties is all information about or from one party which has been announced or disclosed in writing, orally or in any other way to the other party and which has been marked as confidential or is to be regarded as confidential due to the circumstances. The protected or confidential information of the parties shall independently also include business relations, information on operational processes, know-how, calculation bases, concepts, business plans, software algorithms, software concepts, product and program specifications, strategies, sales and marketing data or marketing plans as well as other business and trade secrets of the respective parties.

21.2. The secrecy obligations of Clause 21.1 shall not apply in respect of protected or confidential information if and to the extent that

a. were already publicly known before notification or disclosure by one party to the other party;

b. became publicly known after notification or disclosure by one party without the involvement of the other party and irrespective of any omission by the other party;

c. have been made known or disclosed to the parties by a third party who is not subject to any director indirect confidentiality obligation towards the respective party; or

d. are to be disclosed in the context of legal or official proceedings or due to other mandatory legal regulations.

22. References

22.1. If the user is an entrepreneur within the meaning of § 14 BGB (German CivilCode), the provider is entitled to announce or advertise the conclusion of the contract and the contractual cooperation of the parties in any form (e.g. in reference lists). The user hereby expressly agrees to the use of the company, trademarks and other protected signs by Generato for the aforementioned purpose.

22.2. The provider is entitled to issue a press release in which the conclusion oft he contract and the cooperation between the parties is reported in general terms.

23. Online-Streitbeilegung

The provider hereby directs the user to the online dispute resolution (OS) site of the European Commission with the following link: https://ec.europa.eu/consumers/odr/  

The provider is not responsible for the contents of this site or for the conduct of complaints procedures regarding this site.

24. Choice of law and place of jurisdiction

24.1. The contractual cooperation between the parties shall be governed by the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

24.2. If the user is a merchant in the sense of commercial aw, a legal entity under public law or a special fund under public law, then the registered office of the provider is the exclusive place of jurisdiction for all legal disputes arising from or in connection with the T&C. In all other respects, the statutory places of jurisdiction apply.

25. Final provisions

25.1. All contracts between the user and the provider are concluded exclusively in German. The contractual language is German.

25.2. All contractual texts are accessible to the user within the software in their current version and can be stored or printed out by the user.

25.3. Subject to different provisions in individual cases, neither party shall be entitled to set off claims of the other party or to assert a right of retention with regard to an obligation arising from the business relationship, unless the claims oft he respective party asserting a right of set-off or retention are ready for decision and undisputed, have been acknowledged in writing by the respective other party or have been established by a final and absolute decision of a competent court or arbitration tribunal; this restriction shall not apply to synallagmatic, i.e. mutually dependent claims.

25.4. With respect to entrepreneurs within the meaning of § 14 para. 1 BGB (German Civil Code), the place of performance is the registered office of the provider.

25.5. The parties do not pursue any common purpose through the conclusion and execution of the contract; the provisions of §§ 705 et seq. BGB are therefore not applicable.

26. Amendment of these terms and conditions

26.1. Changes to these terms and conditions require text form. Additional agreements do not exist.

26.2. The provider reserves the right to change these terms and conditions at anytime without giving reasons, unless the change is not reasonable for the user.Generato will inform the user of any changes to the T&C immediately by email. If the user does not object to the validity of the amended T&C within a period of four weeks after receipt of the amended T&C, the amendedT&C are deemed to be accepted by the user.

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