Contractual partners are Inspirient GmbH, Haderslebener Straße 9, Profund Innovation Building, 12163 Berlin, Germany (registration court Berlin-Charlottenburg HRB 178744 B, hereinafter “Inspirient”) and the Customer, as defined below.
These General Terms and Conditions govern the use of Inspirient’s software, web applications and of any other services, data and materials (hereinafter “Services”).
The “Customer” is defined as a company, organization or trader who purchases Services from Inspirient.
Inspirient is the entire legal and beneficial owner and licensor of its Services and is willing to provide the Customer with access to its Services.
The Customer hereby accepts to be bound by these General Terms and Conditions. Furthermore, different, additional, or contrary Terms and Conditions of the Customer shall not apply, even if Inspirient is aware of these Terms and Conditions.
Provision of Services
Inspirient’s Services may be provided to the Customer through an online-based Software-as-a-Service (“SaaS”) offering or through a local on-premises solution. The SaaS offering is defined as a software distribution model in which a third-party provider hosts applications and makes them available to Customers via the Internet, using cloud computing.
The on-premises solution is a type of software delivery model that is installed and operated from a customer's in-house server and computing infrastructure. It utilizes an organization’s native computing resources and requires only a licensed or purchased copy of software from an independent software vendor.
The SaaS offering and the on-premises solution are hereinafter collectively referred to as the “Solution”, unless specifically stated otherwise.
Inspirient grants the Customer a non-transferable, non-exclusive license to access and use the Solution for internal business purposes of the Customer throughout the term of the contract (as defined in Provision 11.2). Unless contrary written agreements have been made between the parties, the Customer shall have the right to access the work results via the Solution for the period of one month after the completion of the analysis provided by Inspirient.
For the purposes of Provision 3.1, use of the Solution shall be restricted to use of the object code form of the Solution software for the purpose of processing the Customer's data for the normal business purposes of the Customer (which shall not include allowing the use of the Solution by, or for the benefit of, any person other than an employee of the Customer).
Obligations and Rights of the Customer
The Customer may not use the Solution in a manner other than specified in Provisions 3.1 and 3.2 without the prior written consent of Inspirient and the Customer acknowledges that additional fees may be payable on any change of use approved by Inspirient.
The Customer shall not:
sub-license, assign or novate the benefit or burden of this license in whole or in part; and
deal in any other manner with any or all of its rights and obligations under these General Terms and Conditions.
The Customer shall not (and shall not allow any third party to) copy, adapt, disassemble, modify, reverse engineer or decompile the source code of any software products included in the Solution in whole or in part.
The Customer agrees that
the Solution may copy data the Customer stores in the Solution (“User-Stored Data”) temporarily on a third-party system for the purpose of processing said data, and that it may change and return such data,
Inspirient may, on request, copy User-Stored Data temporarily on its own systems for the purpose of addressing Customer requests, including fixing software issues (“bugs”) related to said data.
As between the Customer and Inspirient, the Customer is the owner of the User-Stored Data. The Customer grants Inspirient the unrestricted right to use the User-Stored Data for the purpose of processing in the Solution.
By using the Solution and the Services, the Customer shall comply with applicable law, including country-specific data privacy regulations. Illegal content or data infringing the rights of third parties may not be uploaded to the Solution and/or made available to others or distributed through the Solution save to the extent that it cannot be prohibited from so doing under applicable mandatory law, provided that in the event of any reverse engineering that cannot be so prohibited, Customer (i.) shall immediately notify Inspirient in writing of any such reverse engineering, the purpose for which it was undertaken and details of the source code accessed; (ii.) hereby assigns to Inspirient all intellectual property rights in any developments or derivatives arising from such reverse engineering (“Derivatives”); (iii.) may only use the Derivatives subject to these General Terms and Conditions; and (iv.) accepts that Inspirient shall not be under any obligation to support or maintain such Derivatives. In the event modifications are made to the Services or the Solution by anyone other than Inspirient or its authorized subcontractors, any and all warranties with respect to the Services or the Solution shall immediately terminate. Notwithstanding the foregoing, the license rights set forth above may be limited with respect to particular Services or Solution in the manner set forth in any applicable order document.
Inspirient shall have the right to delete data without prior notice if they violate the law or if any third-party rights are infringed. In this context, the Customer shall be under an obligation to perform all acts of cooperation without undue delay, in particular at the request of Inspirient. The Customer shall bear the costs of its acts of cooperation.
The Customer itself shall be responsible for the data and content made available to the Solution. Inspirient does not check whether User-Stored Data and content are accurate or whether they are free from or susceptible to data preparation errors, computer viruses, etc.
Obligations and Rights of Inspirient
Inspirient shall make all reasonable efforts to ensure that the Solution can be used by the Customer. However, permanent availability cannot be guaranteed. In particular, downtimes can be caused by maintenance and software updates, and there may be times when the Solution is unavailable due to technical and/or other problems outside Inspirient’s sphere of influence.
Inspirient may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this license, provided it gives written notice to the Customer.
Inspirient has the unrestricted right to permanently store and use data on the Customer’s usage behavior for the purposes of continuous improvement of the Solution (“self-learning”), billing, and preparing anonymized and consolidated usage statistics.
Inspirient has the non-exclusive, unrestricted right to use the logo, the trademark names and in particular the company name of the Customer in press releases, on Inspirient’s website, and/or in other advertising materials. Unless otherwise agreed in writing, the Customer grants Inspirient the right to alter images and logos and to use them so that Inspirient is allowed to enlarge or reduce the size of logos and/or to convert colored logos or images into black and white.
Intellectual Property Rights
The Customer acknowledges that all Intellectual Property Rights in the Solution and any related software belong and shall belong to Inspirient, and the Customer shall have no rights in or to the Solution other than the right to use it in accordance with these General Terms and Conditions.
Intellectual Property Rights shall mean patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Confidentiality of Shared Information
Inspirient reaffirms that the Customer’s User-Stored Data may contain sensitive and/or privileged information. Inspirient’s data analysis, data storage, and other business processes are thus set up with the key objective to always ensure strict confidentiality of User-Stored Data.
A non-disclosure agreement for confidential data shared between the Customer and Inspirient may be agreed upon separately.
The Customer shall be responsible for maintaining the confidentiality of the passwords of its users.
The Customer shall pay Inspirient the applicable fees (“Fees”) for use of the Solution as detailed in its pricing list or individual offer (superseding the pricing list) within 15 calendar days of the date of the invoice. If the term of the contract is extended, Inspirient shall have the right to adjust the Fee for use of the Solution based on the size of the Customer’s business according to the scale in the pricing list or a separate agreement.
All Fees, other remuneration and prices stated in the pricing list or otherwise contractually agreed are exclusive of VAT at the applicable rate. VAT at the applicable rate shall be charged separately on the related invoice.
If the Customer defaults on payment, Inspirient shall have the right to deny the Customer access to the Solution for as long as the default continues. In this case, the Customer shall continue to be obliged to pay the Fees. Once payment has been made, the Customer shall again be given access to the Solution. Inspirient reserves the right to make further claims based on default of payments.
If the pricing for the usage of the Solution is changed, Inspirient shall inform the Customer prior to the price changes with one-month notice.
The Customer will indemnify and hold harmless Inspirient, its parents, subsidiaries, affiliates, customers, vendors, officers and employees from any liability, damage or cost (including reasonable attorneys’ fees and cost) from any claim or demand made by any third party due to or arising out of the Customer’s access to or use of the Solution or any content on the Solution, violation of these General Terms and Conditions by the Customer, or the infringement by the Customer of any intellectual property or other right of any person or entity.
Except in cases of death or personal injury caused by Inspirient’s negligence, Inspirient shall not be liable for any adverse business impact, including but not limited to delays or lost revenue, encountered by the Customer that may result from the Solution being unavailable at any time.
Inspirient cannot (due to the fundamental mode of operation of its fully automated algorithms) and does not guarantee correctness of its analyses and strongly recommends to double-check any results before directly or indirectly basing any critical decisions on them, or sharing them with third parties.
Contracts with the Involvement of Partner Companies
The following provisions shall prevail and apply, if applicable, in deviation from any other provisions of these General Terms and Conditions, with respect to contracts entered into with the involvement of (e.g., through referrals from) partner companies, subcontractors or resellers of Inspirient’s Solution and/or Services (hereinafter collectively referred to as “Partner Companies”).
Unless otherwise stipulated, the more general provisions of these General Terms and Conditions shall apply.
In the event that a Partner Company is involved, these General Terms and Conditions shall stand as an independent contract between the Customer and Inspirient.
These General Terms and Conditions shall likewise apply if the Solution is used through the service of a Partner Company, e.g., through that Partner Company’s website.
A contract for Services of Inspirient can be entered into by the Customer’s acceptance of the offer the Partner Company submitted, provided that the offer is also signed by an authorized signatory of the Partner Company and these General Terms and Conditions governing the provision of Inspirient’s Services are included.
Inspirient shall have the right to make the various data available to the Partner Company for processing and using it for the fulfillment of the respective purpose. The Partner Company may transfer the data stored by the Customer at the Partner Company or the data calculated by the Partner Company for the Customer to Inspirient for processing and use at its discretion, e.g., as part of consolidated data.
Inspirient does not accept responsibility for breach of confidentiality by the Partner Company. The Customer shall itself be responsible for entering into agreements to this effect with the Partner Company.
Inspirient declines all liability for acts or omissions of third parties, including, without limitation, of Partner Companies, unless their services are expressly part of Inspirient’s contractual Services to the Customer.
Term and Termination
This contractual relationship between the parties is based on an individual offer provided to the Customer by Inspirient upon request. The contract is made effective by uploading any User-Stored data after having registered a user account on the Solution.
Unless otherwise stipulated in an individual offer, the term of contracts for chargeable use of the Solution shall be specified as one (1) month – starting at the day when the results are made available to the customer.
The contract may be terminated by either party on one (1) month’s notice to expire at the end of a calendar month in form of a written note (e.g., fax or email).
Either party, Inspirient as well as the Customer, may terminate the contract for good cause. For instance, Inspirient shall have the right to terminate the contract if the Customer violates these General Terms and Conditions, e.g., by using the Solution beyond the scope agreed by contract, defined as an agreement between two or more parties for doing or not doing something specified, and not ceasing to do so within a reasonable time limit set by Inspirient.
Without affecting any other right or remedy available to it, either party may terminate the contract with immediate effect by giving written notice to the other party if:
the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
the other party commits an irremediable material breach of any other term of this agreement or fails to remedy a remediable breach within a period of 14 days after being notified to do so;
dissolution, winding-up, insolvency of either party occurs.
Effects of Termination of Contract and Surviving Provisions
In the event that the contract is terminated, Inspirient shall disable the accounts of the users of the Customer. The Customer shall be under an obligation to cease to use the Solution.
When the contract is terminated, all rights and licenses granted to the Customer under these General Terms and Conditions including, without limitation, any rights to use the solution, shall cease without undue delay.
The Customer shall immediately pay to Inspirient any outstanding Fees.
The User-Stored data, including the results generated from it, will automatically be deleted from Inspirient’s third-party and own systems with the termination of contract. The Customer may request his/her User-Stored data to be deleted already prior to the end of the contract.
Regardless of the stipulations in provision 12.4, Inspirient may compile anonymized data or statistical information related to the performance of Services for the purpose of internal product enhancement and development regardless of the termination of the Agreement and may make such information publicly available, provided that such information does not incorporate User-Stored data and/or identify any of the Customer’s confidential information or include the Customer’s company name.
Provisions 4.3, 5.3, 5.4, and 9.1 of these General Terms and Conditions shall survive termination or expiration of any contract between Inspirient and the Customer.
Governing Law and Jurisdiction
Any dispute or claim arising out of or in connection with these General Terms and Conditions shall be governed by and construed in accordance with the laws of Germany to the exclusion of UN purchasing law (CISG).
The courts competent for Inspirient’s registered office in Berlin, Germany, shall have jurisdiction to adjudicate any dispute arising out of these General Terms and Conditions.
If one or several provisions of these General Terms and Conditions become invalid or unenforceable, this does not affect the validity of the remaining provisions. The respective provision shall be deemed modified to the extent necessary to render such provision enforceable, and the parties’ rights and obligations shall be construed and enforced accordingly, preserving to the fullest permissible extent the parties’ intent and agreements set forth in the General Terms and Conditions.
If any conflicts between these General Terms and Conditions and any other contractual agreements between Inspirient and the Customer (e.g., pricing lists or individual offers) occur, the latter shall apply.
These General Terms and Conditions may be updated at Inspirient’s discretion, in which case the new General Terms and Conditions will supersede prior versions. Inspirient will notify the Customer of any such update. The updated General Terms and Conditions are considered as accepted by the Customer unless the Customer objects in form of a written note (e.g., fax or email) within one month after receiving the updated General Terms and Conditions. Inspirient’s failure to enforce at any time any provision of these General Terms and Conditions does not constitute a waiver of that provision or of any other provision of these General Terms and Conditions.