The subject of these General Terms of Sale are the contractual relations between the teleservice provider www.mapchart.com (Article 2, clause 1) and its users (Article 2, clause 2).
At the website www.mapchart.com, the service provider maintains a geoinformation service (GIS) on a web-based portal. As web geomanagement system (web GMS), the geoinformation service makes it possible to use space-related planning and analytical tasks through a database in a server of the service provider and a conventional internet browser or obtain corresponding analytical results, for which no application software (GIS software) need be installed in the user's internet computer.
The contract on the content and scope of use of GIS is made between Sven und Rudolf Walter Dresden GbR als service provider (hereinafter referred to as "service provider") and the customer as user.
The use offering (contract offering) by the service provider is directed exclusively to users who are either an entrepreneur or a public institution (hereinafter referred to as "customer"). Customers are also science institutions and societies. Contracts are only concluded with customers in countries which are contained in the registration field of the website.
An entrepreneur is any natural or legal person or partnership who or which in transacting business acts under their professional status as commercial or self-employed entity (§ 14 German Civil Code - BGB). A public institution is any institution performing public tasks.
By submitting the information in the registration form, the customer represents to be an entrepreneur within the meaning of the law, or a public institution.
The service provider operates the website as GIS portal on his own hardware. The location of the server is in Germany.
Application service providing: The service provider makes the GIS software supporting the geoinformation service with geodata (geometries and reference data) as well as other application software accessible for use exclusively in the GIS portal and only for the term of the contract (cf. Article 15) and maintains the software in working order (Application service providing - ASP). No software is supplied for direct use by a customer in the customer's computer or computers either permanently or for a certain time. The extent to which the customer can use the GIS software depends on the license he acquires for using geodata. After term or termination of the contract, the customer is not entitled to receive software suitable for using geodata.
Hosting: The service provider manages the customer's usage accounts and billing accounts and the results obtained by the use of the GIS software by providing memory capacity of an agreed volume on the server ("Hosting"). He makes sufficient provision for data safeguarding. Hosting also includes the storage in archives of geodata acquired by the customer and the loading of the customer's geodata in the server. The service provider can either load the customer's geodata in the server as part of data management or allow the customer to import data directly.
Use of geodata: The service provider makes it possible for the customer to use geodata from different thematic areas by electronic transfer either by purchasing such data or on a pay per use basis for the term of the contract. The GIS software can be used with a base map without purchased or customer-loaded data or data obtained on a pay per use basis; use of the demonstration is possible within the data themes provided. Upon termination of the contract, the customer can only claim the surrender of data which he has acquired by purchase during the term of the contract or which the customer has legally loaded in the service provider's server from his own data stock. The service provider is free to cause surrender of the data by delivering a data volume or transfer in a data network.
Data safety: The service provider takes precautions against loss of data due to computer crash or failure of the server and the prevention of unauthorized access to the data by any third party (backups, virus protection, firewall, etc.).
Data dispatch: Within the constraints of Article 14, the service provider makes it possible for the customer to directly dispatch maps and selection results by electronic mail through the GIS portal.
Licenses: If the service provider stores geodata for use by the customer in the GIS portal, the service provider obtains such data from third-party databases and mediates the right to use the data that is obtained from a third party ("license") as end customer ("end user").
Posting: The service provider makes it possible for the customer to publish customer information ("posting") and for this purpose provides a portal-based communication platform.
Certification: The service provider certifies customer data stocks for their suitability for applications ("certification service") whose details will be defined from case to case.
Not included in the service provider's scope are the following:
a) checks of the correctness and recentness of geodata and geoinformation at the time of the transaction unless the service provider has acquired the data or certified the data in the certification process; checks by comparison are only made by the data supplier;
b) establishment and maintenance of safety and the continuity of data communication using a third-party communication network;
c) establishment and maintenance of the interference-free transmission of data where interference is caused due to technical faults or configuration problems at the customer's end.
The service provider makes efforts to provide regular, at least half-yearly, updates of the digital base map (topographical map, road map). Thematic geodata is provided for use in the state corresponding to the versions used by the service supplier's data suppliers.
Geodata which the customer acquires by way of purchase will be held ready for use by the customer in the state in which they were at the time of purchase. The service provider will provide access to an update service for purchased data, which can involve extra cost.
The service provider undertakes to take all technical precautions for 24x7 access to the geodata portal with a mean availability of the GIS portal of 240 working days in a calendar year.
At the website, the service provider explains to the customer the technical steps leading to the conclusion of contract in electronic business. The text of the contract, including the service provider's General Terms of Contract, is stored by the service provider after conclusion of the contract. The contract can be concluded in German or English language.
The contract on these terms of business is concluded with acceptance of the customer's application for registration through a user-prompted on-line group account (account of the entrepreneur or public institution). The customer can exit the registration process at any time. The receipt of the customer's offer for conclusion of a contract / application for registration) will be confirmed by the service provider by electronic mail without delay. The receipt of the application for registration does not mean acceptance of the application. The service provider is not obliged to accept an application for registration by sending a communication on the electronic unblocking of the use function. Together with the statement of acceptance by electronic mail (e-mail) to the customer, the customer also receives the essential content of his contract data and the General Terms of Contract.
The customer is bound to his application for registration for 8 days.
The service provider can obtain financial information on the creditworthiness of the customer from generally accessible sources.
The customer is obliged to provide the information requested for registration correctly and completely.
The service provider can change the content of the website (database content, structure of the database and the user surface, GIS software, search function, etc.) during the term of the contract with the customer if and to the extent to which this does not substantially affect the performance of purpose for which the contract was concluded with the customer. The service provider will inform the customer in text format on all changes.
The service provider provides an on-line help function ("help") with explanations of the conclusion of contract and the possibilities of use (including use of the software); it also describes the features specific to the agreed on-line application. The customer is obliged to acknowledge and observe the offered help.
A precondition for the use of the GIS in the GIS portal provided by the service provider is that the customer has a working address for access and the transmission of electronic mail (e-mail) and an internet browser Internet Explorer 6.x (or higher) or Netscape Navigator 6.x (or higher). The customer's computer must be able technically to link to the internet and print information received or save such information in an e-mail or through the service provider's GIS portal site in one of the above browsers. The customer's web browser must support the programming language Java (version 1.1 or higher).
The service provider uses SSL (Secure Sockets Layer) encryption for the acquisition or transmission of confidential data. This software ensures that the data can only be read by the service provider. This safety feature is enabled if an intact key icon or a closed lock icon is displayed in the bottom part of the browser window.
The service provider reserves the right to use technical filters as protection of communication by electronic mail. These filters check incoming mails for features of unwanted mail (spams).
The contracted services of the GIS portal, including a demonstration access limited by time or number of users, are only available for use after the customer has logged in.
The log-in is only possible by entering the log-in name (user name) and a password.
If the customer wants to make the use of the GIS available to other persons in his firm or institution in the user's name and on the user's account, he will get an electronic group key as individual key to the group account and can set up and manage user accounts. In the "group account", the customer as first user has the status of group administrator for other sub-users, whose number is initially limited. Only the group administrator decides for whom and for how many persons in his firm or institution he sets up user accounts and permits these users the use of chargeable services in the GIS portal at the customer's account. By passing on the key to other persons in his firm or institution, the group administrator allows the opening of more user accounts by these persons provided they have a valid e-mail account with the customer. The group administrator can delete or block a user or change the group key at any time.
The customer is obliged to protect the log-in password, user name and group key from unauthorized use. If a wrong password is entered under a user name three times, the log-in will be aborted.
Everyone having use of the group key and a valid e-mail account under the customer's domain can define a password and a log-in name and can make chargeable transactions at the customer's account. The password must not be saved electronically by the customer or any sub-user. The customer is obliged to issue instruction to this effect to all sub-users. A password must be entered so that it cannot be seen by anyone else.
If the customer finds that another person knows the password or if there is a risk that the password may be used by someone without authority, the customer is obliged to inform the service provider and apply for a different password without delay.
Persons using the group or user accounts with knowledge of the customer are not unauthorized.
The customer is responsible for the authorized use of any log-in name, group key or password assigned to him.
The customer is obliged to provide and maintain the hardware and connections to the public telephone system he needs for the data link in the internet and he is responsible for the hardware and software and the communication channels he uses.
The cost for providing the on-line link and the cost of maintaining the connection at the customer's end are borne by the customer.
The customer must take care that information (news, text, pictures, graphs) he posts in the GIS portal comply with all legal requirements. He grants third parties the widest possible right of use in the information; restrictions on the use of information provided by the customer must be identified by the customer.
The customer is not permitted to send electronic mail through the portal-based e-mail system if such mails violate valid laws, in particular the law of competition ("spamming"). In particular, the customer must not send advertising material to market participants without having obtained the addressees' consent. He must not disguise or conceal the sender's identity or suppress his address to make it impossible to receive a request to stop sending advertising mails.
The customer is not allowed to publish illegal information (content) or hold such information ready for use in the GIS portal.
The customer is not allowed to destroy or suppress trademarks or copyright notes on or in geodata or on or in results obtained from the use of geodata or render copy protection ineffective.
Waiving the plea of continuation of offence, the customer undertakes to pay to the service provider liquidated damages of EUR 10,000.00 for every case of violation against the above prohibitions for which he is responsible.
For the term of the contract, the service provider provides the customer with a simple, non-transferable right to use the GIS software made by the service provider and provided for use by him (simple license). The right to modify or transfer the software for use by others is not part of the license.
As computer program, the GIS software is protected pursuant to §§ 69a et seq. of the German copyright act and related protection provisions (copyright law). The service provider has the exclusive right to perform or allow the performance of the acts according to § 69c copyright act. Decompilation of the program is forbidden pursuant to § 69e copyright act. Accordingly, the service provider forbids, in particular, any unauthorized copying of the software, any disclosure of the software that is not expressly permitted and the development of similar software using the service provider's software as template.
For the term of the contract, the service provider provides the customer with a simple, non-transferable right to use the geodata and results obtained with the GIS software to the extent to which the geodata is used or obtained through the GIS portal.
Geodata must not be used except for the entrepreneur's or institution's business (end user license). The customer must not use the data for the purpose of hiring or lending them or for the customer's transactions involving data obtained through the GIS portal. The customer is forbidden to engineer or reverse engineer the structure of geodata, mask or remove copyright notes or make derivative products based on the geodata.
The service provider's database supporting the geodata portal and all content are copyrighted.
Rights in geodata owned by the customer directly or acquired by customer from any third party are not affected by the above provisions.
The contract concluded at the time of registration ends with the expiry of one year calculated from the end of the month in which the contract offered by the customer was accepted by the service provider (accounting year) provided notice of termination of the contract is given by either party in text format two months prior to such end. Otherwise the contract extends by another year.
The right of termination for cause (§ 314 German Civil Code BGB) remains unaffected.
A cause justifying termination of the contract is, in particular, if the customer wilfully infringes against the prohibitions in Article 12 hereof or persistently defaults on his obligations pursuant to Article 11 of the contract or the customer, despite a warning and setting of a time limit, fails to meet his obligation of paying the compensation.
In any case of termination of a contract formed by registration the customer relinquishes all stored work results and rented geodata and agrees to the deletion of the memory location at which his data and other information are stored according to the terms of the contract. It is up to the customer to obtain control of the work results from the use of geodata in time if such control is envisaged. Mandatory regulations for the protection of personal data are not affected by this provision.
Basic fee, transaction fee: Together with his application for registration, the customer selects a minimum annual fee as basic fee for the estimated transactions assigned to him through his registration for certain on-line usage of the GIS portal site. A transaction is a user activity in an on-line map which is logged if it leads to a new position of the map section or to access to the service provider's server or his map database. By paying the annual fee, the customer is credited with a stock of transactions. If the customer exceeds his credit in the term of the contract, all transactions consumed in excess of those credited to him will be charged at a unit rate in the tariff selected by him monthly at the beginning of the month (transaction fee). The customer can change to a higher tariff at the end of an accounting year (Article 15, clause 1) provided he files an application for change two months prior to the end of the accounting year. Which tools entail how many transactions and the number of transactions already consumed can be viewed by the customer on-line at any time. Unconsumed basic fee is not refunded.
Registration fee: A registration fee as non-recurrent license fee is charged for the setting up of the accounts.
Data purchase fee, data rent fee: If the customer wants to use geodata in the GIS portal in excess of the amount covered by the basic fee, he can buy further data (data purchase fee) or use data on a pay per use basis (data rent fee).
The service provider can increase the compensation (tariffs) for transactions in an equitable manner (§ 315 German Civil Code BGB), for the first time six months after conclusion of the contract. Pursuant to § 315 German Civil Code BGB, the service provider is entitled to raise the compensation only if the last increase occurred at least six months ago.
All prices are quoted exclusive of applicable value-added tax, except where no such tax should be applicable under valid provisions.
The minimum annual fee chosen by the customer is payable in advance for the year directly after sending the invoice, the transaction fee is payable at the end of each billing period (cf. Article 15, clause 1) immediately after transmission of an invoice to the customer.
The compensation for purchased geodata is due for payment when the data is made available to the customer and an invoice is sent. Fees incurred for pay per use transactions and the compensation payable for the purchase of other services with cost are due for payment upon receipt of the invoice, which is made out monthly at the beginning of the month.
The service provider can demand downpayment or full advance payment if no business relations have previously existed with the customer, if the customer is domiciled outside Germany or there are reasons for doubt whether the customer will make payment when due. If doubts about the solvency of a customer are raised after a contract has been concluded, the service provider can revoke any deferred payment terms and make the amount due for immediate payment.
The service provider sets up an on-line invoice account for the customer in which all due payments are posted in form of an invoice with all mandatory information. As soon as the service provider posts such an invoice in the on-line invoice account and saves it to the customer's invoice account, the invoice is deemed to have been received by and made known (transmitted) to the customer. The service provider is obliged to save the invoice to the customer's on-line invoice account on the day that is the invoice date. The customer is obliged to inspect his invoice account regularly, at least after every seven days. The customer agrees to the on-line invoice in the manner described. It is up to the customer to print and archive the electronic invoice as required for his tax statement.
If an on-line invoice fails to meet the mandatory requirements pursuant to § 14 clause 3 of the German sales tax act (qualified electronic signature or electronic data exchange EDI), the customer can claim that an additional printed hardcopy invoice be sent to his address. All matters concerning the maturity of a compensation claimed by the service provider and the assessment of delay are exclusively governed by the on-line invoice.
Unless agreed otherwise, no cash discount is granted to the customer by the service provider.
If an invoice that is due for payment has been sent to the customer and has not been paid, the customer is in default without warning from the end of the 8th day after the invoice date. The service provider charges the customer interest at 8 percentage points above the basic rate on all amounts whose payment is delayed.
The service provider can block all transactions if the customer delays payment.
The contracting parties undertake to treat all information and trade secrets ("secrets") of the other party which they come to know in connection with the performance of the contract as confidential for an unlimited period of time and use such information only for the purpose of the contract.
The customer shall disclose such secrets only to those of his employees who need to know them for the execution of rights granted under the contract.
The service provider observes all mandatory provisions concerning the protection of data to the extent to which this involves the acquisition, processing and use of personal data.
To the extent to which the service provider has regular access to personal data of the customer (e.g., when handling customer's geodata with personal reference), this does not involve any commercial processing or use of such personal data by the service provider. Personal data is transmitted only in exceptions as a secondary consequence of the contractual services provided by the service provider. The service provider will handle such personal data as intended by the provisions of the German federal data protection law (e.g., "contract data processing") and other applicable laws.
Required legal information on data protection in connection with the acquisition, processing and use of personal data is usually provided to the customer as part of his data-related activities.
The service provider can add a code or digital watermark, use any other steganographic method or take any other suitable action to prevent the unauthorized use or obtain proof of unauthorized use of all information and contents which he provides for download from his website. The service provider can improve and use state-of-the-art safety equipment to the extent to which this is permitted by law.
The service provider is obliged to repair defects in the software provided for use in the GIS portal for the duration of the contract and also defects of geodata acquired by the customer on a pay per use basis.
The service provider grants warranty for purchased geodata as provided by the sales law; the warranty covers the condition of the geodata and - for geodata which is purchased by the customer - that the transition of the agreed rights to use the data to the customer is not hindered by rights held by any third party.
For established material deficiencies in geodata, the service provider provides subsequent performance in that the service provider in his discretion supplies the customer with a new stock of geodata that is free of defect or repairs the defect. Repair can include that the service shows to the customer reasonable ways in which the effects of a defect can be avoided. In case of an established legal defect, the service provider remedies the defect by providing the customer with a possibility to use the software free from any legal defect or, in the service provider's discretion, of equivalent replaced or modified software. The customer must accept a new data stock if the contractual scope of function is maintained and the acceptance does not entail unreasonable problems of modification and reorganization.
If the subsequent performance fails finally, the customer can withdraw from the contract or reduce the amount of compensation. A precondition is the futile expiry of a reasonable period of time allowed and communicated in text format. In setting the deadline, the fact shall be considered that the service provider is not the author of the data stock but obtains it from external sources. The setting of a deadline must contain a warning that the subsequent performance of the contract will be rejected if the deadline expires without positive action taken. The setting of a deadline and the warning of rejection are dispensable if the applicable law provides so.
The limitation for claims from defects in geodata is 1 year beginning with the delivery of the geodata. The same limitation applies to claims from withdrawal and reduction. The statutory warranty periods apply if the service provider should have concealed a defect with fraudulent intention or taken over a warranty for the state of the software or any part of it. The statutory warranty periods also apply if the defect entails liability under product liability legislation or is the consequence of an intentional breach of duty or gross negligence or slight negligence in a material obligation under the contract or if the defect should cause physical injury.
If the service provider provides troubleshooting or remedial services without being obliged to do so, he can claim compensation for it. This applies, in particular, if the communicated material deficiency cannot be proved or assigned as having been caused by the service provider. The customer must prove that the restrictions of use or faults were not caused by improper handling or that improper handling was contributory, by intervention on the part of the customer or by the system environment. Extra cost for the repair of deficiencies incurred by the service provider if the customer fails to properly discharge of his duty to co-operate must also be compensated.
If the customer is a merchant, he must meet the obligations of examination and notification of defects incumbent upon hum under Article 377 German Commercial Code (HGB).
If a claim is raised by a third party and such claim is in opposition to the performance of the right to use as agreed in the contract, the customer is obliged to inform the service provider of it in text format and submit all required details without delay. The customer authorizes the service provider here and now to take all required action to repel the claim in or out of court. If the service provider in his discretion makes use of this authority, the customer must not accept any such claim without the service provider's consent and the service provider is obliged to repel the claim at his own cost and keep the customer free and harmless of all costs and damage in connection with the repeal of the claim provided the claim is not due to a breach of duty on the part of the customer. The provisions in this clause are exempted from the limitation provisions.
In any case of contractual or extra-contractual liability, the service provider pays liquidated damages or indemnification only:
a) in the full amount in case of intent; for gross negligence or lack of a quality for which the service provider has granted warranty, only in the amount of the foreseeable damage which was to be avoided by the failed duty or warranty;
b) in all other cases: only for violation of a material duty provided the purpose of the contract is at risk and subject to a limit of EUR 200,000.00 for each case of damage and EUR 500,000.00 in the aggregate under the contract.
c) any other in excess of the above: if the service provider is insured against the damage, in the extent of the available coverage and subject to the payment of the insurance money as a condition precedent.
The service provider can plead contributory causation. The liability limits in clause 1 above are not applicable in the case of physical damage (fatality, injury, health) or liability under the product liability act.
The limitation for all claims on the service provider for damage or payment of futile expenditure under contractual or extra-contractual liability is one year, except where intent or physical injury is involved. The period of limitation begins at the time defined in § 199 clause 2 German Civil Code (BGB). It occurs latest at the end of the longest periods allowed by § 199, clauses 3 and 4 BGB. The limitation of claims from material or legal defects (cf. Article 23 clause 4) are not affected by the provisions of this clause.
The claim for damage for a leased object irrespective of mutual contributory negligence pursuant to § 536a alt. 1 BGB is excluded.
The service provider is responsible for his information owned and provided by him for use in the GIS portal under general legislation. The service provider is not obliged to control information transmitted by the customer or saved for the customer or search for circumstances indicative of illegal action. Under certain conditions, the service provider is obliged to third parties to remove or prevent the use of illegal information from his customers.
The service provider is not responsible for external information which he transmits in a communication network or access to which he mediates provided he does not cause the transmission, does not select the transmitted information and does not select or change the transmitted information.
As soon as the service provider becomes aware that the customer publishes illegal information, he can remove or temporarily block access to such information. However, the service provider is under no obligation towards the customer to take such action.
The customer can only set off claims wich are not in dispute or for which an unappealable judgment has been obtained. Notwithstanding the provision in § 354a German Commercial Code (HGB), the customer is not entitled to assign any claim to a third party.
The customer is not entitled to claim a right to retention.
All reminders sent or time limits set by the customer in order to be effective require the text format. A grade period must at last be 7 working days. If the futile expiry of a time limit set by the customer is to entitle the customer to withdraw from the contract, the customer must include a warning to this effect in text format in the communication setting the deadline.
The service provider can transfer the contractual relationship with the customer to another company. The transfer, in relation with the customer, becomes effective on the first day of the month following the notification of transfer in text format that the service provider has transferred his rights and duties from the contract concluded with the customer to a third party whose name must be given. If the customer fails to object to this communication within 10 days from its receipt, he agrees to the transfer of the contract on the due date. Reference to this deadline and the consequences of the objection or failure to object must be contained in the communication. If the customer objects, the contract is not transferred.
The customer is not entitled to assign claims from the contract to a third party. The assignment of a monetary claim in the case of § 354a German Commercial Code (HGB) is not affected by this provision.
All amendments and additions to the contractual agreement should be made in text format to serve as evidence.
"Text format" as used in these General Terms of Business, is a statement in suitable manner with permanent reproduction of characters (e.g., facsimile transmittal, including unsigned transmittal, or e-mail, including e-mails without addition of a qualified electronic signature).
The contractual relations between the service provider and his customers are subject to the material law of the Federal Republic of Germany to the exclusion of the international conflicts of law rules.
The application of the UN Convention on Contracts of the International Sale of Goods (CSIG) is excluded.
The agreed place of performance of all contractual obligations from supplies or services of the service provider and the legal venue for disputes from the respective contract is Dresden. Notwithstanding the provisions of Article 22, EC Council regulation No. 44/2001 of 22 December 2000, the above agreement of the legal venue is exclusive for foreign contract parties.
The above clause applies only if the customer is a merchant, legal entity under public law or a legal entity under public separate fund assets.
If any provision or part of any provision in these license terms should be or become ineffective, the effectiveness of the other provisions is not affected.
The legal consequences of the failure to include a provision or the invalidity or partial invalidity of a provision included in these Terms are defined in the applicable legal provisions. If no such legal provision is made, an invalid or partially invalid provision will be replaced by another provision whose economic success comes as close as possible to that of the invalid provision.
(Date: 2005-05-30)
MapChart GmbH, Glacisstr. 4, D-01099 Dresden, Germany