TolaData GmbH

General Terms and Conditions of Use and Contract (GTC)

for the use of the TolaData software as Software-as-a-Service

Approved by

CEO, Jo Bennett 

Last updated

June 2021

These General Terms and Conditions of Use and Contract (GTC) apply between TolaData GmbH, a limited liability company under the laws of the Federal Republic of Germany, with its registered office in Berlin, Ringbahnstraße 32-34, 12099 Berlin/Germany (“TolaData” or “Provider”) and the Customers of TolaData as entrepreneurs (§ 14 German Civil Code “BGB”) in the form of a natural or legal person or a partnership with legal capacity who, when entering into a legal transaction, are acting in the exercise of their commercial or professional activity (“Customer(s)” or “Client(s)”) who wish to use the software-as-a-service (SaaS) available via the website (www.toladata.com) to use Software-as-a-Service (SaaS) via https://toladata.io (the “Software”). These GTC also apply to all related services provided by TolaData for the duration of the contract.

Deviating, conflicting or supplementary terms and conditions of the Customer will only become part of the contract if and to the extent that TolaData has expressly agreed to their validity in writing.

 

1. Services

1.1 The Provider TolaData provides the contractual services, in particular access to the “toladata.io” software in its area of availability (from the data centre interface to the Internet). 

1.2 Additional services, such as the development of customised solutions or necessary adaptations, require a separate agreement.

 1.3 TolaData may provide updated versions of the software; Customers can inform themselves about changes via the company website (release notes).

2. Scope of Use

2.1 The contractual services may only be used by the Customer and only for the purposes agreed in the contract. During the term of the contract, the Customer may access the contractual services by means of telecommunication (via the Internet) and use the functionalities associated with the software in accordance with the contract by means of an up-to-date browser. The Customer shall not receive any further rights, in particular to the software or the infrastructure services provided in the respective data centre. Any further use requires the prior written consent of TolaData.

2.2 In particular, the Client may not use the Software beyond the agreed scope of use or have it used by third parties or make it available to third parties. Project and implementation partners of the Client as well as other external stakeholders for whom a legitimate interest in the use of the Software can be justified by the Client and who are invited by the Client to use the Software are not considered third parties within the meaning of this Agreement but are regarded as if they were employees of the Client itself. 

In particular, the Customer is not permitted to reproduce, sell, rent or lend software or parts thereof.

2.3 TolaData is entitled to take appropriate technical measures to protect against non-contractual use. The use of the services in accordance with the contract may not be impaired more than insignificantly as a result.

2.4 In the event of a User exceeding the scope of use in breach of the contract or in the event of an unauthorised transfer of use, the Customer must, upon request, immediately provide TolaData with all the information available to it for asserting claims on account of the use in breach of the contract, and in particular, provide the name and address of the User.

2.5 TolaData may revoke the Customer’s access authorisation and/or terminate the contract if the Customer significantly exceeds the use permitted to him or violates regulations for protection against unauthorised use. In connection with this, the Provider may interrupt or block access to the contractual services. The Provider must always set the Customer a reasonable period of grace for remedial action beforehand. The sole revocation of the access authorisation shall not be deemed to be a termination of the contract at the same time. The Provider may only maintain the revocation of the access authorisation without termination for a reasonable period of time, not exceeding 3 months.

2.6 The claim of the Provider TolaData to remuneration for use exceeding the agreed use remains unaffected.

2.7 The Customer has a claim to the re-granting of the access authorisation and the access possibility after he has proven that he has ceased the use in breach of contract and has prevented future use in breach of contract.

3. Data Ownership and Data Privacy

3.1 Each Party shall comply with the applicable data protection laws. If required, the Parties shall enter into a separate data processing agreement, which can be downloaded here.

3.2 In general, TolaData’s Privacy Policy shall apply.

3.3 The following applies to all data originating from the Client and entered and stored in the TolaData software: 

  1. a) Exclusive ownership of this data remains with the Client.
  2. b) TolaData will not use this data for any purpose not expressly requested by the Client or to which the Client has not expressly consented.
    4 To the extent that TolaData has access to personal data of the Customer or from the Customer’s sphere, it will act exclusively as a processor and will process and use such data only for the performance of the contract. TolaData will comply with the Customer’s instructions for handling such data. The Customer shall bear any adverse consequences of such instructions for the performance of the contract. Furthermore, the data protection policy agreed between the Customer and TolaData upon conclusion of the Agreement applies.

3.5 The Customer remains the responsible party both generally in the contractual relationship and in terms of data protection law. If the Customer processes personal data (including collection and use) in connection with the Contract, it warrants that it is entitled to do so under the applicable provisions, in particular those of data protection law, and in the event of a breach indemnifies TolaData against claims by third parties.

3.6 The following applies to the relationship between Provider TolaData and Customer: vis-à-vis the data subject, the Customer bears responsibility for the processing (including collection and use) of personal data, except to the extent that the Provider is responsible for any claims by the data subject due to a breach of duty attributable to it. The Customer shall responsibly examine, process and respond to any enquiries, applications and claims of the data subject. This shall also apply in the event of a claim against the Provider by the data subject. The Provider shall support the Customer within the scope of his duties.

3.7 The Provider TolaData warrants that Customer data will be stored exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union or in another contracting state of the Agreement on the European Economic Area, unless otherwise agreed.

4. Obligations of the Customer

4.1 The Customer must protect the access authorisations as well as identification and authentication information assigned to him or to the Users from access by third parties and not pass them on to unauthorised persons.

4.2 The Customer is obliged to indemnify the Provider TolaData against all claims by third parties based on infringements of rights which are based on unlawful use of the Subject Matter by the Customer or are made with the Customer’s approval. If the Customer recognises or must recognise that such an infringement is imminent, there is an obligation to inform the Provider immediately.

4.3 The Client must use the possibilities provided by TolaData to secure its data in its original area of responsibility.

5. Incident Management

5.1 Liability without fault in accordance with § 536a German Civil Code BGB is excluded. The services and software provided by TolaData essentially correspond to the description on www.toladata.com and at https://toladata.io. Rights in respect of defects do not exist in the case of only insignificant deviation from the agreed or assumed quality and in the case of only insignificant impairment of usability. 

5.2 In the event of defects in updates, upgrades or new versions, the right to claim for defects shall be limited to the new features of the update, upgrade or new version of the software compared to the previous version.

5.3 If TolaData does not maintain the level of service availability specified in the following table during a calendar month, the Customer is entitled to the credits described below:

Availability of Service

Service Credit Percentage

< 99 %

5 %

< 95 %

15 %

< 90 %

25 %

5.4 The Customer shall notify TolaData of defects in the Software without delay.

5.5 The Customer’s claims against TolaData arising from this contract due to defects are subject to a limitation period of twelve (12) months, beginning with the first access to the Software. Any claims for damages are subject to the statutory limitation periods.

6. Point of Contact

6.1 TolaData provides a point of contact for the Customer. TolaData accepts enquiries by chat, e-mail and telephone during normal business hours.

6.2 Further services such as introductions and training but also other contact times and deadlines or on-site assignments by the Provider TolaData at the Customer’s premises must be expressly agreed in advance.

7. Term and Termination of the Contract

7.1 The contractually agreed services shall be provided as of the conclusion of the contract and/or payment or invoicing of the licence fees with the correspondingly agreed term. Prior to this, a free trial of the software may take place. 

7.2 Fixed-term contracts shall end upon expiry without the need for termination.

Unlimited contracts with a term of one month shall be renewed automatically by one month and may be terminated with one month’s notice to the end of the month. Unlimited contracts with an original term of 12 months (or the respective agreed term) shall be extended by the duration of 12 further months (or the agreed term) unless terminated no later than one month before the end of the agreed term or the extended term.

7.3 The right of each contracting party to extraordinary termination for good cause shall remain unaffected.

7.4 Any notice of termination must be in writing to be effective. 

7.5 The Customer will back up its data files (e.g. by download) on its own responsibility in good time before termination of the contract. If requested, TolaData will support the Customer in this. The Customer will generally no longer be able to access these data files after the termination of the contract, if only for reasons of data protection la

8. Remuneration and Payment 

8.1 Unless otherwise agreed, the licence fee is payable in advance and in full at the beginning of the respective licence period, unless otherwise agreed between TolaData and the Customer. 

Remunerations shown (e.g. on the website) are always net prices.

8.2 The Customer may only offset or withhold payments due to defects if he is actually entitled to payment claims due to material defects or defects of title in the performance. Due to other claims for defects, the customer may withhold payments only to a proportionate extent taking into account the defect. The customer has no right of retention if his claim for defects is time-barred. Otherwise, the Customer may only offset or exercise a right of retention against undisputed or legally established claims.

8.3 In the event of a permissible transfer of rights of use to deliveries and services, the customer is obliged to impose the contractually agreed restrictions on the recipient.

9. Cooperation and Confidentiality 

9.1 The Customer is obliged to support the Provider as far as necessary and to create in its sphere of operation all conditions necessary for the proper execution of the order. 

9.2 The customer shall report defects in writing without delay in a comprehensible and detailed form, stating all information relevant for the detection and analysis of the defect. In particular, the work steps that led to the occurrence of the defect, the form of appearance and the effects of the defect shall be stated.

9.3 The Client will provide TolaData with appropriate support on request in examining and asserting claims against other parties in connection with the provision of the service. This applies in particular to recourse claims of the Provider against upstream suppliers.

9.4 The contracting parties are obliged to maintain confidentiality about business secrets as well as other information designated as confidential (e.g. in records, documents, data files) which become known in connection with the performance of the contract and neither to use nor disclose them beyond the purpose of the contract without the written consent of the other contracting party. Business secrets and other information designated as confidential may only be disclosed to persons who are not involved in the conclusion, implementation or execution of the contract with the written consent of the other contracting party.

9.5 Unless otherwise agreed, the obligation to maintain secrecy for other information designated as confidential shall end five years after the respective information has become known, but in the case of continuing obligations not before their termination. Business secrets shall be kept secret for an unlimited period of time.

9.6 The contracting parties shall also impose these obligations on their employees and any third parties engaged.

9.7 The contracting parties are aware that electronic and unencrypted communication (e.g. by email) is fraught with security risks. In this type of communication, they will therefore not assert any claims based on the absence of encryption, except to the extent that encryption has been previously agreed.

10. Material Defects and Reimbursement of Expenses

10.1 TolaData warrants the contractually owed quality of the services. No claims for material defects exist for an only insignificant deviation of the Provider’s services from the contractual quality.

10.2 Claims for defects shall also not exist in the event of excessive or improper use, failure of components of the system environment, software errors that cannot be reproduced or otherwise proven by the customer or in the event of damage that occurs due to special external influences that are not assumed under the contract. This shall also apply in the event of subsequent modification or repair by the customer or third parties unless such modification or repair does not impede the analysis and elimination of a material defect.

10.3 The limitation period for material defect claims is one year from the statutory commencement of the limitation period. The statutory periods for recourse according to § 478 BGB remain unaffected.

The same applies insofar as the law prescribes longer periods in accordance with Section 438 (1) No. 2 or Section 634a (1) No. 2 of the German Civil Code (BGB), in the event of an intentional or grossly negligent breach of duty on the part of the supplier, in the event of fraudulent concealment of a defect and in cases of injury to life, limb or health as well as for claims under the Product Liability Act.

The processing of a notice of material defect by the customer by the supplier only leads to the suspension of the limitation period insofar as the legal requirements for this are met. This does not result in a new start of the limitation period.

A supplementary performance (new delivery or rectification) can only have an influence on the limitation period of the defect triggering the supplementary performance.

11. Legal Defects

11.1 TolaData is liable for infringements of third party rights by its Performance only insofar as the Performance is used in accordance with the contract and in particular in the contractually agreed environment of use and otherwise in the intended environment of use without modification.

TolaData is liable for infringements of third party rights only within the European Union and the European Economic Area and at the place of contractual use of the Performance.

11.2 If a third party asserts against the Customer that a performance of the Provider TolaData infringes its rights, the Customer shall notify the Provider without delay. TolaData and, if applicable, its upstream suppliers are entitled, but not obliged, to defend the asserted claims at their own expense to the extent permissible.

The Customer is not entitled to acknowledge claims of third parties before it has given the Provider reasonable opportunity to defend the rights of third parties by other means.

11.3 If third party rights are infringed by a service provided by TolaData, TolaData will at its own discretion and expense

  1. a) procure for the Customer the right to use the Service or
  2. b) make the service non-infringing or
  3. c) take back the performance with reimbursement of the remuneration paid for it by the Customer (less reasonable compensation for use) if the Provider cannot achieve any other remedy with reasonable effort.

The interests of the Customer shall be adequately taken into account.

12. General Liability of the Provider 

12.1 TolaData is always liable to the Customer

  1. a) for damage caused by it or its legal representatives or vicarious agents intentionally or through gross negligence,
  2. b) under the Product Liability Act and
  3. c) for damages resulting from injury to life, body or health for which the Provider, its legal representatives or vicarious agents are responsible.

12.2 TolaData is not liable in cases of slight negligence, except insofar as it has breached a material contractual obligation, the fulfilment of which is a prerequisite for the proper performance of the contract or the breach of which jeopardises the achievement of the purpose of the contract and on the observance of which the Customer may regularly rely.

In the case of damage to property and financial loss, this liability is limited to the foreseeable damage typical of the contract. This also applies to lost profits and savings. Liability for other remote consequential damages is excluded.

For a single case of damage, liability is limited to the contract value, in the case of ongoing remuneration to the amount of remuneration per contract year. 

12.3 In the event of a necessary restoration of data or components, TolaData is liable only for the effort required for the restoration in the event of proper data backup and failure precautions by the Customer. In the event of slight negligence on the part of the Provider, this liability only applies if the Client has carried out a data backup and failure precaution appropriate to the type of data and components prior to the incident. This does not apply if this is agreed as a service of the provider TolaData.

13. Miscellaneous

13.1 The customer shall be responsible for observing any import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border deliveries or services, the customer shall bear any customs duties, fees and other charges. The customer shall handle legal or official procedures in connection with cross-border deliveries or services on its own responsibility, unless otherwise expressly agreed.

13.2 The Provider is entitled to make changes to the service description or the general terms and conditions and other conditions. The Provider shall only make such changes for a good cause, in particular, due to new technical developments, changes in case law or other equivalent reasons. If the amendment significantly disturbs the contractual balance between the parties, it shall require the Customer’s consent.

13.3 The Provider shall provide its services on the basis of its General Terms and Conditions of Use and Contract (GTC). The Customer’s GTC shall not apply, even if the Provider has not expressly objected to them. Acceptance of the services by the customer is deemed to be acceptance of the provider’s GTC with the waiver of the customer’s GTC. Other terms and conditions shall only be binding if the Provider has acknowledged them in writing; the Provider’s GTC shall then apply in addition.

13.4 Amendments and supplements to this contract (including notices of termination, withdrawal) may only be agreed in writing. If a specific written form or the use of a tender portal has been agreed between the Client and TolaData, then this must be used. 

13.5 German law shall apply. The place of jurisdiction vis-à-vis a merchant, a legal entity under public law or a special fund under public law is the registered office of the Provider, TolaData GmbH.