§ 1 | Scope of applicability

(1) These General Terms and Conditions of Business (hereinafter referred to as the “GTC”) apply for all contracts between Marc Hinz-van Schwamen, acting for business purposes under the name pinMy.reviews, Yvonne-Georgi-Weg 5, 30855 Langenhagen (hereinafter referred to as: the “Provider”), and his clients (hereinafter referred to as: the “Client”), concerning the temporary provision of the software solution “pinMy.reviews” (hereinafter referred to as: “pinMy.reviews”, the “Software” or the “Application”) as Software as a Service / extensions or further services, even if they are not separately agreed again.

(2) Unless explicitly agreed otherwise, the version of these GTC applicable upon the conclusion of the contract applies exclusively.

Through the registration of an account on www.pinMy.reviews, the Client explicitly agrees to these GTC and waives the applicability of its own, differing terms and conditions of business or purchasing and payment terms. Other terms and conditions of business shall not apply even if the Provider fails to explicitly object to them in an individual case. Differing terms and conditions of business of the Client shall only apply if they are separately and explicitly agreed in writing. If the Client does not agree to this, it must immediately notify the Provider to that effect in writing.

(3) Clients in the meaning of these GTC are exclusively companies in the meaning of Article 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), i.e. any natural or legal person or partnership with legal capacity which acts upon the conclusion of the contract in performance of its commercial or independent professional activities. The conclusion of a contract with or   the provision of the Application to consumers is excluded.

(4) Individual arrangements made with the Client in an individual case (including additional agreements, additions and amendments) shall in any event take precedence over these GTC. Subject to proof to the contrary, a written contract / written confirmation by the Provider shall be decisive for the content of such arrangements.

(5) The Provider shall have the right to make changes to the service descriptions or these general terms and conditions of business or other terms and conditions . The Provider shall only make such changes for valid reasons, particularly due to new technical developments, changes of case-law or other equivalent reasons. If, due to such a change, the contractual balance between the parties is significantly disrupted, the change shall not be made. Otherwise, changes shall require the Client’s consent.

§ 2 | The subject of the services

(1) The subject of the contract is the provision of the Application, as well as technical enabling of the use of the Application by means of browser access / access software (hereinafter also referred to as: the “App”) and  the granting / brokering of usage rights to the Application, including the App, as well as possible provision of memory space for the data generated by the Client through the use of the Application and/or which is necessary for the use of the Application (hereinafter referred to as: Application data), by the Provider to the Client against payment of the agreed remuneration.

(2)   The Application does not check the customer data or entries or any included data of third parties with regard to the correctness or completeness of their content. Reports, visualisations and other representations are not consulting services or recommendations for action, but rather non-binding reports that the Client can include in its planning according to its own discretion. The respective agreed remuneration shall be paid exclusively for the technical provision of / granting of usage rights to the Software and explicitly does not constitute a consulting fee.

(3) The provision of third-party services is not part of the subject of the services. The Provider does not provide any guarantee for the proper functioning and maintenance of third-party services, particularly the integrated rating and advertising platforms. In particular, the Provider provides no guarantee for:

• uninterrupted functioning
• the maintenance and functioning of provided programming interfaces
• the maintenance of particular content, particularly individual reviews
• changes to the manner of provision

by third-party providers.

(4) The Provider advises the Client that reviews may be unlawful, for example due to violations of platform regulations or other legal violations (particularly under competition laws, personal rights laws or copyright laws). The Provider shall not conduct any monitoring of the content of reviews and provides no guarantee for their legal conformity. Any liability for content created by third parties is excluded, without prejudice to the provisions of § 12.

(5) Details on the content and scope of performance of the Application are provided in the current  as of the conclusion of the contract (§ 3), which can be accessed at https://pinMy.reviews.

(6) Insofar as paid use of the Application by the Client is preceded by a free-of-charge test phase, the user cannot assert any claims on that basis that extend beyond the statutory liability claims.

§ 3 | Registration and the conclusion of the contract

(1) The use of the Application is subject to prior registration. There is no entitlement to open a client account. Only persons with unlimited legal competence acting in performance of their commercial or independent professional activities are entitled to register. At the Provider’s request, the Client must send it proof of identity (e.g. a copy of an identity card) / state its VAT identification number and provide proof of its registration in accordance with registration laws. In the course of registration the Provider shall ask the Client for its data, as well as the company entry to be managed . The data necessary to create the user account must be fully and accurately specified by the Client. Following successful registration, users log into the Application by entering the recorded e-mail address for the password assigned by the Client. The Client must keep its password secret and must on no account disclose it to third parties.

(2) Following registration, the test version of the Application shall be available to the Client for up to 30 days  , for one user.

(3) At the end the test phase the Client will be notified of the end of the possibility of free use and at the same time offered paid use. Insofar as it has not yet provided any payment information, it will be asked to provide payment details. Once it has selected the desired package / term, the Client will be referred to a checkout page in order to enter the payment details. On that page the data will be summarised again.

The contract shall arise through a click on “Order for payment”. If a booking is made outside the ordering system, the contract shall arise for the Client no later than the establishment of the paid components of the Application.

(4) If the Client’s personal / company details change, it shall be responsible itself for updating them. The Provider must be notified of all changes via the input mask in the personal area under “Account“ or in text form.

§ 4 | The provision of the Application

(1) The Provider shall make the Application available in the current version as of the conclusion of the contract from the conclusion of the contract (§ 3) on one or more central data processing systems, which it rents from third parties (hereinafter referred to as: the Server), for use in accordance with the following provisions.

(2) The Provider shall be liable with regard to whether the provided Application:

• is fit for the purposes specified in the current service description,
• is free from defects throughout the term of the contract,
• is, in particular, free of viruses or similar malware that make the Application unfit for use in accordance with the contract

In this context the Provider must exercise the diligence customary in the industry. When determining whether the contractor is culpable, it must be taken into account that for technical reasons software cannot be created such that it is completely free of errors.

(3) The security measures to be observed by the Client are specified in § 8 of these GTC.

(4) Insofar as the Provider creates the Application itself, it shall ensure that it is always in line with state of the art of (tried and tested) technology. Insofar as the Provider obtains parts of the Application (e.g. plug-ins, etc.) from third parties, it shall make available, for use by the Client, the latest version of the respective part of the Application generally available on the market upon the conclusion of the contract no later than three months from general market release by the producer.

(5) Insofar as the provision of new versions is agreed, and if the provision of a new version or a different change results in the functionalities of the Application, workflows of the Client supported by the Application and/or restrictions on the usability of previously generated data being affected, the Provider shall notify the Client in writing to that effect no later than six weeks before the effective date of such a change. Upon each announcement of changes, the Provider shall point out to the Client the above-mentioned time limit and the legal consequences of the lapse thereof if it fails to make use of the possibility of objecting.

(6) The Provider shall keep available on the Server, in the amount 0,2 GB per account, for the storage of Application data, from the moment of the provision of the Application in proper working order.

(7) The Application and the Application data shall be regularly backed up on the Server, and at least once per week. The Client shall be responsible for compliance with any retention periods under commercial laws or tax regulations.

(8) The delivery point for the Application and the Application data is the router output of the computer centre of the hosting provider commissioned by the Provider.

(9) The Client shall provide, for accessing the Application, the   in the current version, and at least the previous version. For changes to the Provider’s technical system, the objection solution referred to in par. 4 item 2 applies accordingly. The Provider shall not be responsible for the quality/characteristics of the necessary hardware and software on the Client’s side or for the telecommunications connection between the Client and the Provider up to the delivery point.

§ 5 | Availability of the Application

(1) The Provider shall be required to ensure availability of the Application and the Application data at the delivery point as agreed below. Availability should be understood by the parties as meaning technical usability of the Application and the Application data at the delivery point for use by the Client.

(2) The Provider shall provide the Client with the Application from the date of the conclusion of the contract, excluding the agreed periods of announced unavailability.

(3) Also considered periods of available use are periods in which:

• malfunctions occur in or due to the state of parts of the technical infrastructure necessary for the execution of the Application, including third-party services (§ 2.3), which are not to be provided by the Provider or its vicarious agents;
• malfunctions or other events occur which are not caused or contributed to by the Provider or one of its vicarious agents, e.g. exceeding of an agreed permitted burden on the Application;
• an insignificant reduction occurs of fitness for the contractual use;

(4) Announced unavailability

(a) In periods of announced unavailability the Provider shall have the right to maintain the Application and/or Server, carry out data backups or perform other work. The Client grants, already now, its consent to planned unavailability throughout the term of the contract  . Otherwise, announced unavailability and its expected duration will be announced at least seven days in advance. This notice period may be shortened in justified exceptional cases.

(b) The use of the Application in periods of announced unavailability

If and insofar as the Client is able to use the Application in periods of announced unavailability, it shall have no legal entitlement to do so. If, during use of an application in periods of announced unavailability, a reduction or cessation of performance occurs, the Client shall not have any claim to liability for defects or compensation for losses. This shall also apply insofar as the Client uses a browser other than those referred to in § 4.9 or a version other than the version recommended therein.

(5) Troubleshooting

Insofar as response and recovery times are not separately agreed, the Provider shall ensure, in the event of unplanned periods of unavailability of the Application, that the elimination of the malfunction is initiated   and the Client is notified to that effect. The Provider shall also ensure that the reported / identified technical malfunction is eliminated within a period being reasonable in view of the scope of the malfunction.

§ 6 | Other performances of the Provider |

(1) During the term of the contract  for the Application and any extensions shall be available for the Client.

Insofar as an update of the Application is agreed and occurs, the user manual shall be adjusted accordingly.

(2) Insofar as the Provider provides software of third parties as an application and documentation in German/English is not generally available from that third party, the Provider shall have the right to only provide the documentation available to it.

The Client shall have the right to store, print out and reproduce in a reasonable number for the purposes of this contract the documentation provided, maintaining any existing intellectual property notices. Otherwise the restrictions on use specified for the Application in § 7-8 of these GTC apply accordingly for the documentation.

(3) The Provider shall provide client support. The communication channels are specified on the Provider’s website. The Provider reserves the right to adjust contact periods and channels. Insofar as the parties agree support response and recovery periods in a service level agreement (SLA), it shall be a component of the contract.

(4) Further performances of the Provider may be agreed at any time. In particular, support services may be subsequently agreed. Unless agreed otherwise, such further services shall be performed against reimbursement of the proven expenses at the Provider’s general hourly rates.

§ 7 | Usage rights for and use of the Application

(1) The Client shall receive simple (not sublicensable and non-transferable) usage rights to the Application limited to the term of this contract in accordance with the following provisions.

(2) The Client shall use the Application exclusively on the Server. The Application will not be physically provided to the Client. The Client may only use the Application for its own business activities through its own personnel.

(3) The Client shall use the Application only within the scope of the booked services. The Provider reserves the right to assert claims in the event of additional use in excess of the agreed use.

(4)  . This does not apply for changes which are necessary for the rectification of errors, insofar as the Provider delays in the elimination of the error, refuses to eliminate the error or is unable to eliminate the error due to the initiation of insolvency proceedings.

(5) Insofar as the Provider implements new versions, updates, upgrades or other new deliveries with respect to the Application during the term of the contract, the above-mentioned rights shall also apply for them.

(6) The Client shall not be entitled to any rights that are not explicitly granted to it above. In particular, the Client shall not have the right to use the Application or have it used by third parties outside the scope of the agreed use or to make the Application available to third parties. In particular, it shall not be permitted to reproduce the Application, sell it or temporarily provide it, including renting or lending.

 § 8 | Obligations of the Client for secure use

(1) The Client shall take the necessary precautions to prevent use of the Application by unauthorised persons. In particular, the Client shall ensure that the passwords it uses comply with the current recommendations of the Federal Office for Information Security (Bundesamt für Sicherheit in der Informationstechnik), i.e. they should contain at least eight characters and consist of upper case and lower case letters, special characters and digits. 

(2) Before sending data and information to the Provider, the Client must check it for viruses and use anti-virus programs being in line with the state of the art of technology.

(3) The Client shall be liable with regard to use of the Application for racist, discriminatory or pornographic purposes or purposes that jeopardise the protection of children and young people, are politically extreme or otherwise unlawful or violate official regulations or requirements, as well as with regard to the creation and/or storage on the Server of data with such a character, particularly Application data.

(4) The Client shall be responsible for ensuring it complies with the restrictions/obligations with respect to the usage rights under § 7. In particular it shall:

(a) refrain from accessing information or data or having it accessed without authorisation, interfering in programs operated by the Provider or having them interfered in or penetrating data networks of the Provider without authorisation or encouraging such penetration;

(b) refrain from misusing the exchange of electronic messages which is possible within the framework of the contractual relationship and/or with the use of the Application for sending unsolicited messages or information to third parties for advertising purposes;

(c) indemnify the Provider against any claims of third parties resulting from unlawful use of the Application by it or which arise from legal disputes caused by the Client based on data protection laws or copyright laws or other legal disputes related to the use of the Application;

(e) ensure that it (e.g. upon the transmission of texts/data of third parties to the Provider’s Server) respects all rights of third parties to material used by it;

(f) obtain the necessary consent of the respective data subject under § 10.2 if, when using the Application, it collects, processes or uses personal data and this is not permitted by operation of law;

(g) before sending data and information to the Provider check it for viruses and use anti-virus programs being in line with the state of the art of technology;

(h) if it transmits data to the Provider for the generation of Application data with the aid of the Application, regularly back it up in accordance with the significance of the data and create its own back-up copies so as to enable the reconstruction of the data or information in the event of its loss;

(i) if and insofar as the technical possibility is consensually opened up for it, regularly back up the Application data stored on the Server by downloading it; the data backup obligation of the Provider under § 4.7 remains unaffected.

(5) Violations of the provisions of par. 1 to 4 by the Client

(a) If the Client breaches the provisions of par. 1 – 4 for reasons for which it is responsible, the Provider may block the Client’s access to the Application or the Application data if the breach can be demonstrably stopped as a result.

(b) If the Client unlawfully breaches par. 2 or 3, the Provider shall have the right to erase the affected data / Application data. In the event of an unlawful breach by users, the Client must promptly provide the Provider, at its request, with all information needed to assert the claims against the user, particularly their name and address.

If, despite a written warning issued by the Provider, the Client continues to breach or repeatedly breaches the provisions of par. 1 to 4 and is responsible for this, the Provider will be able to terminate the contract by way of extraordinary termination, without observing a notice period.

(c) In the event of breaches of obligation by the Client, the Provider will be able to claim compensation for losses in accordance with § 12, unless the Client is not responsible for the breach of obligation.

(7) Without the Provider’s permission the Client shall not have the right to provide the Software to third parties, in particular to sell it or rent it out. Non-independent use by the Client’s employees / other third parties subject to a right to issue instructions of the Client as part of use for the intended purpose is permitted.

(8) The Client must take suitable precautions to protect the Software against unauthorised access by third parties. It must advise its employees and the other persons with non-independent use authorisation that it is impermissible to exceed the contractual scope of use.

§ 9 |  

(1) The remuneration for the services to be performed consisting of providing the possibility of using the Application and the provision of memory space, including data backup, shall be charged according to a monthly flat rate . 

(2) The amount of the flat rate shall depend on the selected package, as well as the selected term of the contract. The currently effective price-list can be accessed on the Provider’s website.

If the Provider submits an individual offer to the Client in text form, it shall take precedence over the above-mentioned price-list. The respective flat payment shall be payable for each settlement period from the date of provision in proper working order onwards and shall be due for payment in advance on the first business day of the settlement period. If the Client justifiably terminates the contract by way of extraordinary termination, the flat rate must be paid back pro rata temporis.

(3) System changes to services of third parties (§ 2.3) after the conclusion of the contract (§ 3) shall not cause the cessation of the obligation to pay the fee.

(4) Other services shall be performed by the Provider on a time and materials basis, according to the Provider’s general list prices applicable on the date of the order.

(5) Any payable separate remuneration must be settled within 10 days from receipt of the invoice.

(6) The Provider shall have the right to increase the flat payments referred to in par. 2 by way of a written announcement, giving 30 days’ notice, effective as of the beginning of the next month, if and insofar as the costs it incurs for the correct performance of the contract increase. If the price increase amounts to more than 5% of the existing price, the Client shall have the right to terminate the contract in its entirety, giving three weeks’ notice, effective as of the end of a calendar month. If it exercises this termination right, the non-increased prices shall be charged up to the effective date of the termination. The Provider shall advise the Client of this termination right with each announcement.

(7) Remuneration shall be payable with the addition of VAT in the current statutory amount.

(8) The Client agrees to the issuance of invoices in an electronic format and their electronic transmission (electronic invoices). The Provider shall have the right to make use of payment service providers for the processing of payments and the issuance of invoices. 

§ 10 | Data security, data protection

(1) The parties shall comply with the currently applicable  (in particular the General Data Protection Regulation and the German Data Protection Act (Bundesdatenschutzgesetz)) and obligate their employees engaged in connection with the contract and its performance to maintain data secrecy, insofar as they are not already subject to a general obligation in that respect.

(2) If the Client collects, processes or uses personal data, it warrants that it is authorised to do so in accordance with the applicable laws, particularly data protection regulations, and in the event of a violation it shall indemnify the Provider against any third-party claims.

(3) The Provider shall only collect and use personal data of the Client to the extent necessary for the performance of this contract. The Client agrees to the collection and use of such data to that extent.

(4) The obligations under par. 1 to 3 shall exist as long as Application data lies within the Provider’s sphere of influence, including after the end of the contract.

(5) Insofar as the transmitted data includes personal data, the parties shall conclude a contract data processing agreement in accordance with Article 28 GDPR. In the event of contradictions between this contract and the contract data processing agreement, the latter shall take precedence.

§ 11 | Confidentiality

(1) The Provider undertakes to treat confidentially any information it obtains in connection with the respective contractual relationship which is marked confidential or should be deemed confidential in view of the circumstances, and it shall also obligate its employee and other vicarious agents to do so.

(2) The non-disclosure obligation shall continue to be effective after the termination of the respective contract.

(3) The non-disclosure obligation does not apply for information, which:

• was demonstrably known or made available to the recipient party before it was provided by the other party;
• after being provided by the other party is demonstrably lawfully disclosed to the recipient party by a third party which is not subject to a non-disclosure obligation;
• is or, after being provided by the other party, becomes common property among experts as a result of publications or otherwise.

(4) Without prejudice to the above provisions the Provider shall have the right to fulfil its statutory notification obligations also with regard to the information provided to it.

(5) Insofar as the Client grants prior consent to this in text form, the Provider shall have the right to name the Client with respect to third parties as a reference client and to include the Client’s name and logo as a reference on its own website. This authorisation shall continue to be effective after the termination of the contractual relationship, until it is revoked by the Client.

§ 12 | Liability

(1) The Provider shall be liable without limitation in the event of wilful misconduct or gross negligence for all losses caused by it or its statutory representatives or vicarious agents.

(2) In the case of minor negligence, the Provider shall be liable without limitation in the event of loss of life or injury to the body or health.

(3) Otherwise the Provider shall only be liable insofar as it has breached a key contractual obligation. Key contractual obligations are obligations being of special significance for the achievement of the objective of the contract, as well as all obligations which, in the event of a culpable breach, could lead to the achievement of the objective of the contract being jeopardised. In such cases, the liability shall be limited to compensation for the foreseeable, typically occurring losses. In this context it is once again noted that pursuant to § 2 par 2 – 4 neither the provision and maintenance of services of third parties nor checking of third parties’ entries are contractual obligations.  The strict liability of the Provider for compensation for losses (Article 536a of the German Civil Code (Bürgerliches Gesetzbuch – BGB)) for defects existing upon the conclusion of the contract is excluded; par. 1 and 2 remain unaffected.

(4) Insofar as data backup does not fall within the Provider’s contractual service catalogue, the Client shall be responsible for regular backing up of its data.  

(5) The Provider shall not be liable for violations of the third-party rights by the Client if and insofar as the violation results from the usage rights granted under this contract being exceeded. In such a situation the Client shall indemnify the Provider against all third-party claims at its first request.

(6) The liability under the German Product Liability Act (Produkthaftungsgesetz) and under other mandatory statutory regulations remains unaffected.

§ 13 | Term, termination

(3) The right of termination for good cause remains unaffected. Good cause shall be deemed to exist, in particular, if the other party breaches its contractual obligations in gross breach of contract and despite a written warning and/or setting of a time limit. Good cause shall be deemed to exist, in particular, if the Client defaults on the payment of remuneration or significant parts thereof and also fails to pay the remuneration within reasonable time limit after a reminder is issued, or if an application is filed for the initiation of insolvency proceedings concerning the Client’s assets and/or such insolvency proceedings are initiated.

(4) If the contractual relationship is terminated by the Provider by way of extraordinary termination due to a culpable breach of obligation by the Client, the Client shall compensate the Provider for the losses resulting from the extraordinary termination.

(5) If the termination does not occur via the button in the Client profile designated for that purpose, the notice of termination must be in writing .

(6) Following the termination of a paid variant, the Client account shall be deleted. 

(7) If the Client requests the deletion of its account, access to the Client account shall be blocked. Unless agreed otherwise, all data of the Client shall be erased three months from the termination of the contract.

(8) The Client shall be exclusively responsible itself for compliance with statutory retention requirements (e.g. under tax regulations) with regard to its Client data.

(9) Any use of the Software after the termination of the contractual relationship is impermissible.

§ 14 | Events of force majeure

Neither of the parties shall be obliged to fulfil the contractual obligations in the event of and for the duration of an event of force majeure. The following circumstances, in particular, should be deemed events of force majeure in this sense:

• fire/explosions for which the party is not responsible,
• pandemics,
• flooding,
• war, revolt, blockades, embargoes,
• industrial disputes that last for more than six weeks that are not culpably caused by the party,
• technical problems affecting the Internet that are beyond a party’s control.

Both parties must promptly notify the other party in writing of the occurrence of an event of force majeure.

§ 15 | Final provisions

(1) All contractual relationships with the Provider are subject to German substantive law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

(2) Any ineffectiveness of individual provisions of these GTC shall not affect the effectiveness of the other provisions of the contract.

(3) If, in the course of the practical application of the respective contract or these GTC, unintended gaps/omissions come to light that the parties did not foresee or if the ineffectiveness of a provision is established with legally binding effect or consensually by both parties, the parties shall fill in the unintended gap/omission or replace the ineffective provision in an objective, reasonable manner based on the economic purpose of the contract.

(4) Insofar as these GTC or other contract documents are also translated into other languages, the translations shall only serve as a reading aid. In the event of disputed or interpretational issues, exclusively the German version shall be referred to.

(5) The exclusive court of jurisdiction for all contracts with the Provider is, unless a provision of law mandatorily requires a different place of jurisdiction, the Regional Court competent for 30855 Langenhagen.