General terms and conditions

§2 — Subject matter of the contract

(1) These terms and conditions apply to the use of the selection platform, as presented on the website, by the contractual partner and software manufacturer.

(2) The selection platform is provided on the basis of a web-based cloud solution. The contractual partner and software manufacturer is enabled to use the cloud solution stored and running on the servers of Softwaregini or a service provider commissioned by Softwaregini via an Internet connection for their own purposes during the term of this contract and to store and process their data with their help.
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(3) The object of Softwaregini's services to the contractual partner is the provision of a cloud solution for identifying suitable software based on the contractual partner's requirement profile. The selection platform provides the contract partner with a quota of software applications. With every software application, the contract partner can carry out a market review in cooperation with the software manufacturers. Services are provided using the Softwaregini cloud solution. A software application is submitted via the Softwaregini cloud solution.
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(4) The quota for software applications is defined in the service package. Unless otherwise agreed in accordance with Section 1 (4), the quota is valid for the agreed contract period of 12 months. The quota is renewed upon contract extension in accordance with Section 5 (5). The quota is not updatable or refundable. Performance claims for software applications that have not been completed at the end of the contract period cannot be asserted over the contract period.
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(5) Softwaregini offers various service packages. The scope and specific prices of the service packages are based on the service description included in the offer for the respective package. The service description of the respective service package used is part of the contractual relationship with Softwaregini.
(6) Softwaregini offers its software in various stages, which can be continuously developed by Softwaregini. The scope of use depends on the booked service. Softwaregini is entitled not to make individual services available for certain types of use or to restrict their use if they are not used by more than 90% of the contractual partners.
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(7) Softwaregini provides the contract partner and software manufacturer with the latest version of the cloud solution at the router exit of the data center where the server with the website is located (“transfer point”). The cloud solution, the computing power required for use and the required storage and data processing space are provided by Softwaregini. However, Softwaregini is not responsible for establishing and maintaining the data connection between the IT systems of the contract partner or software manufacturer and the described transfer point.
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(8) Softwaregini and the contractual partner agree that a contract between the contractual partner and a software manufacturer is an independent and separate contract. Softwaregini is not a party to the contract. Therefore, the warranty for the proper performance of contracts between the contractual partner and software manufacturer as well as further liability with regard to all processes or processes in connection with the contracts is directed at the contractual partner. Softwaregini's liability for the proper provision of services under the contracts is excluded. The successful conclusion of a contract between the contract partner and software manufacturer is solely the responsibility of the contractual partner and the software manufacturer. As a result of the contract with Softwaregini, the contractual partner has no claims to successful sales transactions with software manufacturers.
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(9) Softwaregini creates information about software manufacturers and the products and services offered to the best of its knowledge and belief and checks proposed changes for legality as part of the industry's usual diligence. However, Softwaregini is not obliged to verify the information provided by software manufacturers. In particular, Softwaregini does not provide legal advice or other legal services.
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(10) Softwaregini and the software manufacturer agree that Softwaregini is an independent platform for carrying out the IT selection process. In particular, Softwaregini does not owe the conclusion of a contract with the contractual partner for the benefit of the software manufacturer.

§3 — Availability of the website and services

(1) Softwaregini aims for system availability of >99.5% for overall system availability, regardless of planned downtime or force majeure issues. Softwaregini informs the contractual partner and software manufacturer that restrictions or disruptions to the website and its services may occur that are beyond Softwaregini's control. This includes in particular actions by third parties who do not act on behalf of Softwaregini, technical conditions of the Internet that Softwaregini has no influence on, and force majeure. The hardware and software and technical infrastructure used by the contract partner or software manufacturer may also have an influence on the usability of the website. Insofar as such circumstances have an influence on the availability or functionality of the software, this does not constitute a breach of contract by Softwaregini.
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(2) In order to enable faults to be rectified as efficiently as possible, the contractual partner or software manufacturer has functional failures, malfunctions or
- Report software defects immediately upon discovery and as precisely as possible by e-mail to service@softwaregini.com.
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(3) Softwaregini processes fault reports, except on public holidays, Monday to Friday between 10:00 and 17:00.

§4 — Rights of use

(1) The contractual partner receives the paid, non-exclusive, non-transferable right to use the selection platform for the duration of this contract.

(2) The software manufacturer receives the free, non-exclusive, non-transferable right of use for the selection platform for the term of this contract.

§5 — Contract period, registration and termination with contract partners

(1) After conclusion of the contract, the respective package booked by the contracting party is available. This is available for an unlimited period of time, but subject to discontinuation of the offer at any time.
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(2) The contract is concluded when the contractual partner accepts the offer (hereinafter “offer”) from Softwaregini in writing or in text form or concludes by means of a digital payment process provided by Softwaregini. Unless otherwise stated in the offer itself, Softwaregini is bound to the offer for a period of two weeks. The period starts on the date of delivery of the offer. In any case, the contract is concluded upon receipt of payment, but no later than the start of the provision of services of the offer.
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(3) After the contract has been concluded, Softwaregini activates the contractual partner's user account, which the customer can reach with his e-mail address (“login data”). The contract partner will be informed that their user account has been activated. The access data must be kept secret and must not be made available to third parties. The contractual partner is personally and solely responsible for all activities related to his user account.
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(4) If the personal or company details of the contractual partner change, the contractual partner himself is responsible for updating them and must provide this software.
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(5) Unless otherwise stated in the selected service package or otherwise agreed in accordance with Section 1 (4), the contract period is 12 months and is extended by 12 months in each case if the contractual partner does not give notice 30 days before the end of the contract period. Termination declarations must be in writing at least in order to be effective.
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(6) Softwaregini and the contractual partner reserve the right to terminate the contract for good cause without compliance with a period of notice if the legal requirements are met. There is an important reason in particular if the contractual partner is 90 days in arrears with payment of the remuneration due

§6 — Contract period, registration and termination with software manufacturers

(1) As soon as the software manufacturer logs on to the website https://softwaregini.com/ with an e-mail address, the user contract is concluded under the local conditions.
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(2) There is no right to open a user account. Only persons with unlimited legal capacity who act in the exercise of their commercial or independent professional activity are eligible to participate. At Softwaregini's request, the software manufacturer Softwaregini must send a copy of his identity card or name his sales tax identification number and document registration under registration law. The data required to create the user account must be provided completely and truthfully by the software manufacturer.
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(3) If the personal or company details of the software manufacturer change, the software manufacturer himself is responsible for updating them and must provide this software information.
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(4) The software manufacturer can terminate the user contract under the local conditions at any time. Termination declarations must be in writing at least in order to be effective.

§7 — Prices, terms of payment and right of change

(1) If the contractual partner chooses a paid package, the amount specified in the service description must be paid for the services to be provided by Softwaregini. The amounts in the service description are plus sales tax at the respective legal rate. The amount is due 28 days after the start of the billing period. Receipt on Softwaregini's account is decisive for the timeliness of the transfer.
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(2) Softwaregini reserves the right to change prices at the end of the respective contract period. The contractual partner will be notified of this by e-mail no later than six weeks before the end of the contract period.
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(3) Softwaregini is entitled to adapt or change the content of the individual service packages, provided that the content of the service package is not fundamentally changed to the detriment of the contractual partner. This right applies in particular if a change or adjustment is required for software gini for technical or business reasons.
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(4) Softwaregini may also change these terms and conditions during the contract period if legal or technical changes require this. Changes will be notified to the contractual partner in writing at least four weeks in advance. They are effective on the specified date and are considered approved if the contractual partner does not cancel the contract.
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(5) Contractual partners who use a paid service package may neither offset claims from Softwaregini arising from this contractual relationship nor assert a right of retention, unless these are undisputed or legally established counterclaims.

§8 — Rights to data processing, data backup, order processing

(1) Softwaregini complies with legal data protection regulations.
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(2) The contractual partner and software manufacturer grants Softwaregini the right to reproduce the data to be stored by Softwaregini for the contractual partner and software manufacturer, insofar as this is necessary to use the solution. Softwaregini is also entitled to store the data in an outage system or separate outage data center. In order to eliminate faults, Softwaregini is also entitled to make changes to the structure of the data or the data format.
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(3) If and to the extent as the contractual partner and software manufacturer processes or allows personal data or confidential data to be processed on IT systems responsible for software ginite technology, it must inform its users accordingly. Softwaregini provides all information about the collection, processing and storage of personal and confidential data through its systems in the privacy policy: https://softwaregini.com/datenschutz.pdf.
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(4) If Softwaregini acts as a contract processor within the meaning of Article 28 GDPR for the contractual partner or software manufacturer, the provisions on order data processing by Softwaregini apply. The provisions apply even without being signed separately by both parties, simply by concluding a contract

§9 — Rights and obligations of Softwaregini

(1) Softwaregini is entitled to refer to the cooperation with the contractual partner and software manufacturer in publications, e.g. as part of company brochures or on its own website, etc. Softwaregini is also entitled to use image and text documentation relating to cooperation with the contractual partner and software manufacturer as part of public relations work.
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(2) Softwaregini is not liable for an infringement of the rights of third parties by the contractual partner or software manufacturer, insofar as this violation results from an infringement of the rights granted under this contract. In this case, the contractual partner or software manufacturer releases Softwaregini from all third-party claims upon first request.
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(3) All copyright, intellectual property and other rights to all content, data, concepts and designs created by Softwaregini and/or by third parties on behalf of Softwaregini for the contractual partner or software manufacturer remain with Softwaregini. Softwaregini grants the contractual partner and software manufacturer non-exclusive (simple) and spatially unlimited rights of use of this content for the duration of the contract period.
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(4) The rights of use granted to the contractual partner or software manufacturer are not transferable to third parties and cannot be sub-licensed without written consent from Softwaregini.
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(5) Content provided by Softwaregini may not be modified without the express consent of Softwaregini. Any complete or partial imitation or editing is prohibited. In the event of a violation of this provision, the contractual partner or software manufacturer must pay compensation to Softwaregini.

§10 — Rights and obligations to cooperate of the contractual partner and software manufacturer

(1) An essential factor for the provision of the contractually agreed services by Softwaregini is the involvement of the contractual partner and software manufacturer. The contractual partner and software manufacturer will support Softwaregini in providing the contractual services to an appropriate extent. In particular, the contractual partner and software manufacturer will provide Softwaregini with all data and documents necessary for the provision of services free of charge and will provide Softwaregini with all necessary notifications upon request.
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(2) If the contractual partner or software manufacturer does not comply with its obligations to cooperate or does not fulfill them to a sufficient extent, Softwaregini is released from its performance obligations for this period, insofar as the respective services cannot be provided or can only be provided with disproportionate effort due to the lack or only inadequate fulfilment of the obligations to cooperate.
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(3) The contractual partner and software manufacturer undertakes to use the platform only for the specified purpose. He undertakes to provide the data required to conclude the contract carefully and to the best of his knowledge and not to provide misleading information and not to overburden the service through misuse. The contract partner and software manufacturer will refrain from attempting unauthorised access to third-party data. In addition, the contractual partner and software manufacturer undertakes to keep secret any passwords and/or registration data made available to him by Softwaregini for registration and to make them available only to persons who have been effectively authorized to do so by him.
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(4) The software manufacturer warrants that it is the owner of all rights required for the contractual use of the selection platform, in particular that it has the necessary copyright, trademark, intellectual property and other rights and can transfer them to Softwaregini for the purpose of fulfilling the contract, in terms of time, location and content, to the extent necessary for the execution of the contract;
- the information provided by him, provided and uploaded with regard to his product (s) is true, complete and not misleading;
- the information provided by him, provided and uploaded with regard to his product (s) is not confidential and may therefore be permanently passed on, recorded or otherwise used by Softwaregini to third parties, and in particular the contractual partners;
- he will not use the selection platform for anti-competitive purposes; - he will not upload any illegal content, in particular will not deliver, offer, provide access to or promote content that violates the provisions of the Criminal Code or the Narcotics Act, Medicines Act or Weapons Act

§11 — Confidentiality between contract partner and software manufacturer

(1) Contractual partners and software manufacturers are obliged to keep permanently secret all information that has become known or becomes known to them in connection with this contract about the other party, which is marked as confidential or is otherwise identifiable as business and trade secrets (hereinafter: “confidential information”), not to pass on, record or otherwise exploit it, unless the other party to the disclosure or use is expressly and has agreed in writing or the information must be disclosed by law, court decision or administrative decision.
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(2) The information is not confidential information within the meaning of this paragraph if it
• were previously known to the other party without the information being subject to a confidentiality obligation,
• are generally known or become known without breaching the assumed confidentiality obligations,
• be disclosed to the other party by a third party without breach of a confidentiality obligation.
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(3) The obligations survive the end of this agreement.

§12 — Liability

(1) Softwaregini is fully liable — irrespective of the legal basis — for damage caused intentionally or through gross negligence (gross negligence). In the event of simple negligence, Softwaregini is only liable, subject to a more lenient standard of liability in accordance with statutory provisions (e.g. due care in personal matters), for damage arising from injury to life, limb or health or for damage resulting from the breach of cardinal obligations. Cardinal obligations are the essential obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on whose fulfilment the contractual partner may rely. In this case, liability is limited to foreseeable damage typical of the contract. Otherwise, claims for compensation are excluded.
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(2) Softwaregini is only liable for damage due to loss of data by the contractual partner or software manufacturer as part of the software gini services to the extent of the effort incurred if the contractual partner or software manufacturer has carried out regular and application-appropriate data backup and has thus ensured that lost data can be restored with reasonable effort. This limitation of liability does not apply in the event of intent and gross negligence.
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(3) The provisions of the Product Liability Act remain unaffected.
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(4) Insofar as Softwaregini's liability is excluded or limited, this also applies to the personal liability of Softwaregini's employees, workers, employees, representatives and vicarious agents.

§13 — Liability

(1) The law of the Federal Republic of Germany applies, excluding the UN Sales Convention.
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(2) The place of fulfilment for all services relating to Softwaregini is Hamburg if the contractual partner is a merchant, a legal entity or a special fund under public law.
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(3) If the contractual partner is a merchant, a legal entity or a special fund under public law or does he have no general place of jurisdiction in the Federal Republic of Germany, the exclusive place of jurisdiction for all possible disputes relating to Softwaregini Hamburg is. Hamburg is the exclusive place of jurisdiction for lawsuits against Softwaregini. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.
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(4) The contract language is German.