Terms and conditions for the provision of A3M systems and services
§ 1 Scope
A3M Global Monitoring GmbH (A3M) provides its customers with measures and concepts for the information, protection and security of the travellers and persons staying abroad. To this end, A3M collaborates with globally operating partners based in Germany. The Customer intends to support its travellers before and during a trip or a stay abroad as well as in case of emergency to meet any potential statutory obligations (duty of care and duty to provide information, duty to maintain safety, organiser’s liability, Package Travel Directive, etc.).
For the duration of the Agreement, the Customer and its travellers shall be provided with the systems and services offered by A3M and shall be authorised to access, request and utilise them.
§ 2 Conclusion of the Agreement
The Customer commissions A3M to set up and maintain services in the scope specified in the Agreement.The specific scope of services is defined in the Agreement concluded with the Customer and the following sections. In this regard, it is irrelevant how the Agreement is concluded (e.g. service contract, order confirmation, order placed by the Customer, etc.).
§ 3 Definitions
3.1 „Costumer“ shall mean any natural or legal person to whom the Contractual Services are sold or for whom they are provided.
3.2 „Traveller” shall mean every employee (in whatever position) of the Customer or the end Customer of a tour operator / travel agency.
3.3 „A3M Material” shall mean the information, data and media collected by A3M in particular on the topics of meteorology, environment, geology, biology, health, politics, security, transport, technology, entry and exit regulations which are specified – but not finally – in detail in the description of services.
3.4 „Third party material” refers to information provided by A3M which is collected by third parties or links to third party websites (e.g. travel and security information from foreign ministries, visa/entry requirements, tour operator notifications, etc.). The respective third party providers are solely responsible for the completeness and content of their information. A3M has no influence on whether a third party provider generally or regularly provides and updates the information.
3.5 “Global Monitoring” shall mean stand-alone, web-based, password-protected software consisting of the standard modules in accordance with the description of services.
3.6 „Travel Alerts” shall mean notifications from A3M consisting of e-mails, text messages/SMS and/or other messages generated on the basis of the A3M Material (Global Monitoring events) which can be sent to the contacts stored in Global Monitoring and to the travellers of the within Global Monitoring present bookings.
3.7 „Travel Tracking” shall mean the modules for the provision of the company-specific travel data (booking data) by means of the Global Monitoring, as described in the description of services.
3.8 „Traveller Report” shall mean a notification from A3M generated on the basis of the A3M Material (Global Monitoring events) which includes a list of the travellers who are currently in the country of the occurring event (according to the booking data). The Passenger Report can be sent to the contacts stored in Global Monitoring.
3.9 „Country Information” shall mean a stand-alone, web-based, password-protected portal that is used to provide general and security-related information about individual countries and cities, as described in the description of services.
3.10 „Country Dossier” shall mean a notification from A3M generated on the basis of the A3M Material (Country Information) which can be sent to the travellers of the within Global Monitoring present bookings.
3.11 „The “Global Monitoring App” serves to alert the travellers based on their location via push-notification via Smartphone and / or via e-mail, as described in the description of services.
3.12 „Destination Manager” shall mean a stand-alone, web-based, password-protected portal that is used to provide travel-related information in regard to COVID-19, as described in the description of services.
3.13 „My Trip“ page shall mean an individualised website that is made available by the Customer to the traveller manually from the Destination Manager or automatically via “My Trip” API and allows the traveller to access the latest version of the A3M Material (Destination Manager) for the combination of his/her travel destination, travel data and travel purpose, as described in the description of services.
3.14 „OK2Travel” Widget, available as a standard and premium version, shall mean an online solution for integration in websites for touristic purposes that provides the end customer with the opportunity to find out about the feasibility of the trip and the general conditions at the planned travel destination against the background of COVID-19-related restrictions, as described in the description of services.
3.15 The “Corona hotline” serves to answer COVID-19-related questions of the travellers round the clock over the phone, as described in the description of services. The Corona hotline is operated by a partner of A3M.
3.16 „API” shall mean the provision of the A3M Material (Global Monitoring events, Country Information, Destination Manager, etc.) via interfaces (APIs) for automatic retrieval and automated further processing by customers.
3.17 „Individual Services” shall mean all the services, developments, enhancements and adjustments which A3M provides for the Customer individually on request, as described in the description of services.
3.18 „Objects of Proprietary Rights” shall mean the company names, word marks, picture marks and figurative marks, pictures, graphics, logos, photos, videos, audio recordings, texts and other data and files provided or made available for use as part of the provision of the Contractual Services in accordance with the provisions of the Agreement and its annexes.
3.19 „Contractual Services” shall mean all services and other performances provided by A3M that are the subject matter of the individually closed Agreement.
3.20 „Contract” shall mean the mutual declarations of intent of the Parties, A3M and the Customer.
3.21 „License” describes a non-exclusive right to use the Contractual Services provided by A3M – such right being transferable if thus determined by relevant provisions of the Agreement including its annexes, and being limited, geographically limited or unlimited if thus determined by relevant provisions of the Agreement including its annexes – within the framework of the purpose of the Agreement and as far as necessary for use.
3.22 „Geographical Scope” shall mean the countries and geographical regions in which or for which A3M shall provide the Contractual Services. The Geographical Scope applicable to the Agreement shall be: the world.
3.23 „A3M Assistance”: In addition to the above-mentioned technological solutions, A3M offers medical and security assistance services. These are provided to the Customer by partners of A3M that are named in the respective offer. The GTC / contract terms of the assistance partners are also made available to the Customer along with the offer and constitute an integral part of the Agreement. The A3M Assistance services comprise the services listed below; however, the specific scope of services is defined in the respective Agreement. The individual assistance services are listed in A3M’s description of services (integral part of the respective Agreement).
3.23.1 Technical Individual Services
The following Individual Services can be provided to the Customer:
- Global Monitoring
- Travel Alerts
- Travel Tracking System
- Passenger Report
- Country Information
- Country Dossier
- Global Monitoring App
- Destination Manager
- My Trip-page
- Corona hotline
- API (Global Monitoring, Country Information, Destination Manager etc.)
3.23.2 Medical Individual services (provided by A3M´s partners)
The following Individual Services can be provided to the Customer::
- 24/7 medical hotline (combined with the security hotline, if applicable)
- Medical consulting in emergency and routine cases
- Coordination of repatriations
If the Medical Individual Services are covered by a contract between the Customer and an international health insurance company and the assistance partner is an assistance provider of that international health insurance company, the services rendered will be settled directly between A3M’s assistance partner and the international health insurance company. A3M points out that a direct billing agreement can generally be concluded with any international health insurance company. A3M will bill the Customer directly for services that are not covered by the international health insurance company, taking into account the maximum limit agreed in the offer.
3.23.3 Security Individual Services (provided by A3M´s partners))
The following Individual Services can be provided to the Customer:
- International 24/7 security hotline (combined with the medical hotline, if applicable)
- Emergency and crisis consulting
§4 Major contractual obligations, cooperation and implementation of the Agreement
4.1 The Agreement shall not create a partnership or cooperation – in whatever legal form – between the Parties. Neither Party shall be entitled to act on behalf of the other Party or to create any such appearance.
4.2 A3M hereby reserves all the rights in its proprietary rights, confidential information and data. No rights or obligations are hereby agreed other than those explicitly mentioned. Moreover, such rights cannot be derived or inferred from the Agreement. In particular, the Agreement shall neither directly nor indirectly grant a License to or right to use a word or picture mark, a name or a company, for an invention, discovery, copyright or industrial property right which, now or in the future, can be held, made, kept or licensed by the Parties involved, unless otherwise expressly agreed hereunder.
4.3 The mutual rights and obligations, in particular the Contractual Services – including, but not limited to, the details regarding the implementation of the Agreement including the cooperation, such as the manner of sending, receiving or accessing data and the definition of data formats and interfaces – are described in detail and are finally regulated in the description of services.
4.4 With regard to the collection, storage and sending of the data related to the implementation of the Agreement, A3M shall be entitled to use the services of third parties. The transfer point for the Contractual Services provided by A3M shall be the ingress or egress router of the data centre used by A3M or of the provider concerned.
4.5 The connection to the Internet, the maintenance of the network connection and data connection and also the procurement and provision of the necessary hardware and software are not the subject matter of the Agreement.
4.6 Access to databases and platforms shall only be possible with a valid username and password. The Customer shall treat these as strictly confidential at all times. It shall not be permitted in particular to pass on the personal access data to third parties, to make such data available in any form or to enable third parties to access such data. The Customer shall be solely responsible for the protection of the access data and the retrieval of data by means of such access.
§ 5 Persons entitled to services, verification of entitlement to services
5.1 Technical Individual Services
The Customer and its employees to whom the access data have been disclosed are entitled to make use of the services agreed and described above. It is the Customer’s sole responsibility to decide to whom the above-mentioned confidential data are disclosed. The Customer will oblige its employees not to pass on the data to third parties.
5.2 Medical and Security Individual Services
5.2.1 The Customer and its employees to whom the service number has been disclosed are entitled to make use of the services agreed and described above. It is the Customer’s sole responsibility to decide to whom the above-mentioned confidential data are disclosed. The Customer will oblige its employees not to pass on the data to third parties.
In the event of uncertainty about a caller’s entitlement to services, the Customer will be contacted by A3M’s assistance partner to decide on the entitlement to services. If the caller credibly demonstrates that there is imminent danger to life and limb, the preliminary check is omitted and carried out at a later point.
For all medical or security services that involve further services in addition to a phone call and fee-based services of external service providers,
A3M’s assistance partner will – insofar as this is reasonable from a medical or security perspective and there is no imminent danger – obtain the Customer’s separate approval on a case-by-case basis. This approval automatically includes the instruction and authorisation to engage external service providers at the Customer’s expense.
If verifying the entitlement to services or obtaining an approval is not possible in case of emergency due to lack of time or for practical reasons, the entitlement is verified merely based on the information provided by the employee (such as the employee’s name and address, etc.). In this case, A3M’s assistance partner is entitled to take all steps necessary to render the requested service and to engage third parties at the Customer’s expense (up to the maximum limit indicated by the Customer)..
5.2.2 If the coverage is verified, A3M’s assistance partner is obliged to render the service.
This shall not apply in the event of disruptions in performance, including, but not limited to, adverse weather conditions, congestion of air space or airports, denial of required landing, take-off, traffic and flyover rights abroad, natural phenomena, force majeure, strikes, riots, embargoes or war. Furthermore, a significant deterioration in the patient’s state of health during transport is also deemed to be a disruption in performance. A3M’s assistance partner shall not be liable for any resulting damage.
5.2.3 The Parties agree that the entitlement to services cannot be verified with absolute certainty
over the phone. In the event that the entitlement to services is verified over the phone, is plausible or confirmed by checking back with the Customer, the risk of a lack of entitlement to services and the costs shall be borne solely by the Customer.
5.2.4: If it turns out that the employee was not entitled to services, A3M’s assistance partner will assign to the Customer any rights necessary to assert claims for compensation.
§ 6 Changes in Services
A3M is entitled to change its services if the change is reasonable for the Customer and is made for a compelling reason. However, the scope of services must not be limited thereby.
Apart from that, A3M is also entitled to change its services in part. Insofar as this results in a limitation, A3M will inform the Customer of the change six weeks before the change takes effect. The Customer is entitled to object to the change in writing or by email within a period of two weeks after receipt of the notification of change. If the Customer objects to the change, A3M is entitled to terminate the Agreement with notice at the earliest possible date. In this case, the Agreement will be continued without any changes until expiry of the remaining contract term.
§ 7 Duties of the Customer
7.1 The Customer shall provide A3M with all documents, data and other information in complete and accurate form for A3M to render the services. A3M shall be notified of any changes without delay.
7.2 The Customer shall inform A3M in a comprehensible manner to what email address and to what persons security-related investigation results are to be forwarded. Notifications and deliveries by A3M are made at the recipient’s risk.
7.3 If the price is calculated based on the number of travellers / bookings p.a., the Customer is obliged to inform A3M of the number of travellers / bookings p.a. on an annual basis in a comprehensible manner. Furthermore, A3M is authorised by the Customer to refer to the Customer’s data provider (e.g. travel agencies, OBEs, etc.) for information on the number of travellers / bookings p.a. Should the actual number of travellers / bookings p.a. exceed the agreed volume by more than 15%, A3M reserves the right to adjust the prices according to A3M’s current price list in the future with 6 weeks’ prior notice.
7.4 The Customer shall protect the access data provided to it or to the users (passwords, codes, etc.) against access by unauthorised third parties at all times and also oblige its employees to do so. As soon as the Customer becomes aware of any indications that an unauthorised third party may have obtained knowledge of such data, it shall notify A3M without delay and share its insights.
7.5 The Customer shall obtain the necessary consent of the respective employee to the extent personal data are collected, processed or used within the scope of rendering the services. In addition, the Customer shall observe all data protection and other statutory requirements, in particular including the information requirements pursuant to 13 GDPR. If necessary, the Customer shall also obtain from its employees a special consent pursuant to point (a) of Art. 49 (1) GDPR and inform the employees of the risks associated with a transfer of personal data to a third country.
7.6 The Customer shall notify A3M of any defects in the Contractual Services without delay in a verifiable manner, specifying how and under what conditions the defect occurred. As far as possible, the Customer shall assist A3M in identifying the root cause.
§ 8 Scope of warranty
8.1 A3M compiles and processes news, analyses, instructions and risk assessments from a variety of sources deemed reliable by A3M that have not been subjected to a neutral review. The information thus obtained can be verified editorially only in individual cases. However, A3M undertakes to make every effort, within the bounds of what is reasonable and proportional, to ensure that an assessment of the situation is possible.
8.2 A3M cannot warrant that the evaluated sources are reliable and timely at all times. However, A3M shall review such aspects at regular intervals – in the case of circumstances that give rise to doubts about reliability, without delay. For this purpose, to ensure the completeness and timeliness of individual items of information, A3M shall on occasion review such information at several sources.
8.3 A3M shall not be responsible for the functionality of third party systems, communication equipment and third party materials.
8.4 A3M does not warrant that the reception/storage or reproduction of the Contractual Services is permissible under the laws of the respective foreign country of residence.
§ 9 Availability and response times
9.1 A3M shall provide the Contractual Services with a technical availability level of at least 99%..
9.2 The calculation of availability pursuant to § 9.1 shall be governed by the following formula:
The relevant total time shall be the calendar year. The calculation of the availability time – and thus the period in which the Contractual Services are at least available – shall involve deducting from the total time the time in which the functionality of A3M Global Monitoring or the provision of the Contractual Services is impacted due to the existence of a defect classifiable as Category 1 or 2 in accordance with the definition in § 9.5. If the availability time is divided by the overall time, the result must equal at least the minimum availability specified above.
9.3 Any discrepancies between the current state and the target state of the Contractual Services, as determined and described in the Agreement and its annexes and the agreements concluded in connection with the Agreement, shall be deemed defects.
9.4 The potential defects shall be classified in the following defect categories:
9.4.1 Category 1 “Defects preventing operations” – the Contractual Services cannot be provided and/or used, or the Contractual Services are useless for the Customer.
9.4.2 Category 2 “Defects restricting operations” – The provision and/or use of the Contractual Services is impacted but can essentially be carried out, and the information stored is essentially reliable and suitable for assessments of circumstances and/or situations. The defects can be circumvented by organisational and/or other, economically appropriate measures that can be taken at short notice.
9.4.3 Category 3 “Other defects” – There is no significant impact on the functionality and usability of the Contractual Services.
9.5 A3M shall respond to the defects reported, within the following response times:
9.5.1 In case of Category 1 defects:
The defect analysis shall be concluded within the support times defined in the description of services, within four hours after receipt of the incident ticket. Debugging shall be concluded within 24 hours after the defect analysis is concluded.
9.5.2 In case of Category 2 defects:
The defect analysis shall be concluded within the support times defined in the description of services, within 16 hours after receipt of the incident ticket. Debugging shall be concluded within 72 hours after the defect analysis is concluded
9.5.3 In case of Category 3 defects:
The defect analysis shall be concluded within the support times defined in the description of services, within 24 hours after receipt of the incident ticket. Debugging shall be carried out in the context of the next regular release, but no later than within one month
9.6 If A3M fails to remedy the defect(s) within the period determined above, the Customer shall be entitled – in case of Category 1 defects, after a 24-hour grace period expires unsuccessfully, and otherwise after the unsuccessful expiry of a reasonable period of time – in cases of doubt, one month – to reduce the license costs or to terminate the Agreement for cause.
§ 10 Defects
10.1 For defects in the Contractual Services, A3M shall be liable in accordance with this § 10 to the extent that adverse effects are not due to availability restrictions as defined in § 9.
10.2 If the Contractual Services to be provided by A3M under the Agreement are defective, A3M shall – at its option – remedy the Services or provide them again, within a reasonable period of at least two weeks, and on the condition that A3M receives an adequately specific notice of defects describing the defect in understandable, reproducible form.
If third party software is used that A3M has licensed for use by the Customer, the liability for defects shall consist of procuring and installing generally available upgrades, updates or service packs.
10.3 If the remedy of material defects within a reasonable period set by the Customer for reasons for which A3M is responsible, the Customer shall be entitled to reduce the agreed remuneration by a reasonable amount or rescind the Agreement. The right to reduce the remuneration shall be limited with respect to the amount to the monthly remuneration allocated to the defective part of the performance.
The same shall apply if A3M is in default of providing the operational Contractual Services. The Customer shall be entitled to rescind the Agreement, however, only if A3M does not comply with a reasonable grace period of at least two weeks, set by the Customer.
10.4 The Customer shall support A3M in remedying the defects, free of charge, and shall provide in particular all the necessary documents, data, etc. which A3M requires for analysing and remedying the defects.
§ 11 Rights of use to the Technical Individual Services
11.1 The applications are subject to the following rights of use and copyrights:
The Customer acquires a non-exclusive, non-transferable right, limited to the contract term in respect of time and content,
to use the A3M Material as follows:
11.1.1 The Customer is entitled to use the Contractual Services as specified in the description of services.
11.1.2 Using the Contractual Services in any other way or for any other purpose than that stipulated in the Agreement and its annexes is not permitted. Apart from that, the statutory provisions of copyright law shall remain unaffected.
11.1.3 The Customer is entitled to forward the A3M Material received from A3M to the persons specified in the Agreement. Apart from that, the Customer is entitled to use the Contractual Services in accordance with § 3.19.
11.1.4 The Customer is liable to pay compensation in each individual case in which it culpably enables third parties to use the contractual software. Further rights and claims of A3M shall remain unaffected.
11.1.5 In the event of unauthorised use or permission to use, the Customer shall immediately provide A3M with all information known to the Customer so that A3M can assert claims against the unauthorised user.
11.1.6 If the Customer becomes aware of any unauthorised use of the Contractual Services by a third party, the Customer shall provide A3M with the contact details of the third party on its own initiative so that A3M can assert claims against that third party.
11.1.7 If the contractually agreed use is limited or rendered impossible through no fault of A3M and/or by proprietary rights of third parties, A3M is entitled to stop rendering the affected services. A3M will notify the Customer without delay and enable the Customer to access its data in an appropriate way.
§ 12 Third party proprietary rights
12.1 If a third party asserts a claim against the Customer due to the infringement of proprietary rights resulting from the use of the Contractual Services, the Customer shall inform A3M without delay and allow A3M to defend such claims as far as possible. In doing so, the Customer shall provide A3M with all reasonable assistance. In particular, the Customer shall provide A3M with all the required information about the use and processing of the Contractual Services, as far as possible in written form, and make the necessary related documents available.
12.2 A3M shall be obligated to pay damages to the Customer due to the infringement of third party proprietary rights only if A3M is at fault for the infringement.
12.3 Insofar as third party rights are infringed, A3M may at its option perform the remedy by
- obtaining a right to use that is sufficient for the purposes of the Agreement from the Party authorised to dispose of the proprietary right, in favour of the Customer, or
- changing the software that is infringing proprietary rights, without adverse effects – or only with adverse effects that are acceptable for the Customer – on its functionality, or
- replacing the infringing software without any adverse effects – or only with adverse effects that are acceptable for the Customer – on its functionality, with software that does not infringe any proprietary rights when used as agreed by contract, or
- delivering a new software version that does not infringe any proprietary rights when used as agreed by contract.
In other respects, the regulations of § 10 shall apply accordingly in the case of defects of title.
12.4 The rights of the Customer in accordance with this 12 shall not exist insofar as the infringement of third party proprietary rights results from the fact that the Customer
- has made a change to the Contractual Services that was not approved by A3M in writing, or
- has used the Contractual Services in a manner other than for the purposes of the Agreement, or
- has combined the Contractual Services with hardware or software that does not meet the requirements pursuant to the description of services.
§ 13 Prices, due dates, price modifications, unauthorised use by third parties, objections
13.1 As compensation for the services specified in the Agreement, the Customer undertakes to pay A3M a possible one-off set-up fee, regular basic fees as well as individual service fees, depending on the services used. The amount of the remuneration results from the price calculation included in the Agreement.
13.2 If necessary, the Customer shall inform the booking offices in good time and instruct them to provide A3M with the required information upon request. The Customer shall promptly forward to A3M a list of the booking offices acting on its behalf.
13.3 The prices for the individual Contractual Services are stipulated in the Agreement. Details of the services included are provided in the description of services. All prices are exclusive of value-added tax at the statutory rate. The prices are fixed for 12 months from the start of the contract. After this period, A3M is permitted to make annual net price adjustments equal to the amount that the sub-indices of the producer price index for the IT services of the Federal Statistical Office relating to software and software licences (DL-IT-01) changed by over the course of the previous twelve calendar months. Payments are made exclusively on receipt of an invoice or credit note.
13.4 Due dates:
13.4.1 The set-up fee shall be due and payable after invoicing upon the conclusion of the Agreement.
13.4.2 The billing of the basic fee(s) is stipulated in the Agreement.
13.4.3 All invoices shall be due and payable no later than 14 days after invoicing by A3M, without deductions. The deadline shall be deemed met if the payment order is issued to the bank within said period.
13.5 A3M will adjust the prices payable under the Agreement at its reasonable discretion (Sec. 315 BGG) to the development of the costs that are decisive for the price calculation. A price increase shall be considered and a price reduction shall be made if, for example, the personnel expenses, external costs, etc. increase or decrease or other changes in the legal framework conditions lead to a changed cost situation. Increases in a cost type may only be taken as a basis for a price increase to the extent that they are not offset by decreases in other cost areas. In the event of cost reductions, the prices shall be reduced by A3M, unless this reduction is fully or partially offset by increases in other areas. In exercising its reasonable discretion, A3M will choose the respective dates of a price change in such a way that cost reductions are not taken into account according to criteria that are less favourable for the Customer than cost increases, i.e. cost reductions shall have at least the same effect on the price as cost increases.
13.6. Special right of termination: A price adaptation shall be permitted at the earliest upon the expiry of the first twelve months of the term of the Agreement. A3M shall notify the Customer of the adjustment in writing, with at least six weeks’ notice prior to the effective date. In the event that the Customer does not accept the adjustment and notifies A3M in writing, the Customer shall be entitled to terminate the Agreement in full, in writing, within the six weeks following the written notification, with six weeks’ notice prior to the end of a calendar month. In such case, the present terms and conditions shall continue to apply, unaffected, up to the effective date of the termination.
13.7 The Customer shall remunerate the utilisation of Contractual Services enabled by the access data provided to it for confidential use, even if such use is carried out by an unauthorised third party, unless the Customer is not responsible for the utilisation of the Contractual Services on the part of the third party. The remuneration obligation shall apply also if the Customer had a well-founded suspicion that the access data had been disclosed to third parties and the Customer did not inform A3M without delay. However, the Customer shall not be obligated to remunerate the use by an unauthorised party if the act of use takes place after the Customer informs A3M that the access data has become known to third parties.
13.8 The Customer shall be entitled to set off claims against claims of A3M only with counterclaims that are undisputed or have been declared non-appealable. The assertion of a right of retention by the Customer shall be excluded.
§ 14 Arrears
If the Customer is in arrears with a payment for more than 14 days, A3M shall be entitled to block the Customer’s access to the Contractual Services, provided the Customer is first warned, being issued a reasonable deadline for payment, and this consequence is pointed out to the Customer. In such case, the Customer shall remain obligated to pay the fee.
If the Customer is in arrears with a fee due on a monthly basis
- for two consecutive months, or
- in a period of more than two months, and the amount of the fee reaches the fee amount for two months,
A3M shall be entitled to terminate the Agreement without notice. The amount of damages shall be set higher or lower if A3M provides proof of a higher damage amount or the Customer provides proof of a lower damage amount. A3M reserves the right to assert further claims due to default.
§ 15 Confidentiality
15.1 The Parties undertake to keep strictly confidential all information, matters and trade secrets they become aware of within the scope of the Agreement and its implementation as well as the services and prices agreed between the Parties.
15.2 This shall not apply to the extent that the business and company information, affairs and matters as well as business and trade secrets
- are in the public domain or
- must be disclosed under a statutory obligation.
15.3 Furthermore, the Parties undertake not to use the knowledge obtained from the business relationship for their own purposes.
15.4 The obligation to maintain confidentiality shall survive the termination of the Agreement.
15.5 The Parties undertake to carefully store any business documents of the respective other Party in their possession and to protect them from access by third parties. Once the Agreement has ended, the Parties are obligated to hand over all documents received from each other that contain the business and company secrets of the respective other Party, including any copies, transcripts and recordings made of these and to delete any data stored and provide a confirmation of the deletion on request. This does not apply if the handover of these data carriers contravenes the purpose of the Agreement or statutory regulations.
§ 16 Data protection and data security
16.1 The Parties shall observe the applicable data protection laws. They shall in particular obligate those of their employees who are assigned in connection with the Agreement to observe data secrecy in accordance with the General Data Protection Regulation (GDPR), unless such employees are already generally obligated accordingly. The Parties shall in particular observe the provisions that apply to contracts for commissioned processing and shall take the required technical and organisational measures to protect the personal data within the meaning of Article 64 GDPR, if necessary.
16.2 The Customer hereby authorises A3M to process, store, evaluate and use the data received in the context of providing the Contractual Services, in accordance with the data protection laws. Personal data shall be used solely for internal purposes in the context of providing the Contractual Services, for example for sending travel warnings by text message/SMS, for sending the Customer information about the system status and for internal customer analyses. Personal data shall be disclosed to third parties solely if and insofar as necessary for the purpose of implementing the Agreement.
16.3 If A3M or the Customer is obligated under applicable data protection laws to give a third party information about the collection, processing or use of data pertaining to such person, the Parties shall support each other in this respect and provide the corresponding information. This obligation shall continue to exist even beyond the expiry of the term of the Agreement, in accordance with the applicable data protection laws.
16.4 If the Customer, itself or through A3M, collects, processes or uses personal data, the Customer shall ensure that it is authorised to do so in accordance with the applicable provisions, especially regarding data protection, and shall indemnify A3M from any and all third party claims in case of an infringement.
16.5 The Customer shall remain the “data owner”, both in the context of the contractual relations and in terms of data protection (“data owner”, Article 24, 28 GDPR). With regard to the right of disposal and the ownership of any and all Customer-specific data (data entered, processed, stored and output), the Customer shall be solely entitled to such right. A3M shall not in any way control the data or content stored for the Customer with respect to the legal admissibility of the collection, processing and use thereof; such shall be the responsibility solely of the Customer.
16.6 A3M shall back up the data and content sent by the Customer, on a regular basis and as appropriate in terms of risk, but at least once a day, and shall create its own backup copies in order to ensure the reconstruction of such data and content in the event that such are lost.
16.7 and the Customer shall be liable towards each other for any damage that results for the other Party due to the breach of the obligations under this section and of the statutory regulations.
§ 17 Responsibilities, liability and limitations of liability
A3M shall only be liable, no matter on what legal grounds, in accordance with the following provisions,
unless a different regulation has been agreed elsewhere in the Agreement.
17.1 Solely the Customer shall be responsible for correctly entering data relevant to the Contractual Services that is received from the Customer and for making settings with the entry screens. The Customer shall not in any way misuse the application or have it misused; in particular, the Customer shall not provide any content with content that is illegal or is contrary to the terms of the Agreement.
17.2 The A3M systems and services may contain translations provided by the “DeepL SE” machine translation service. A machine translation reproduces the essential content of a text in an easy-to-understand manner. It is generated automatically without any human involvement. The quality and accuracy of machine translations may vary greatly depending on the text and the language combination. A3M disclaims any warranty for the correctness and any liability for potential mistranslations. Some contents (such as images, files, etc.) may not be translated due to the system’s technical limitations.
17.3 A3M shall be liable towards the Customer without restriction in case of intent or if a guarantee has been given. A3M shall not be liable for damage incurred by the Customer due to data loss for which A3M is not responsible. The Customer shall be obligated to take appropriate security measures in accordance with the state of the art.
17.4 A3M and the Customer shall be liable towards each other for direct damage caused by intent, gross negligence or the slightly negligent breach of essential contractual obligations. In the case of slight negligence, liability shall be limited to typical, foreseeable damage. Liability for economic losses, consequential damage or indirect damage, in particular for lost profits, loss of information and data and other reductions of assets shall be excluded. For damage not caused by intent or gross negligence, A3M shall only be liable up to a maximum amount of € 5,000,000.00 per damage event. This corresponds to the sum insured under A3M’s financial loss liability policy.
17.5 The limitations of liability shall apply, finally and on any legal grounds, to any and all liability claims in connection with the Agreement and in particular including warranty liability. Exceptions to the above shall be mandatory statutory liabilities, including liability in accordance with the Product Liability Act or in case of injury to life, body or health.
§ 18 Force majeure
A3M is released from the obligation to provide services on the basis of the Agreement if and insofar the failure to fulfil a service results from incidents of force majeure.
Incidents of force majeure are for instance wars, industrial action, unrest, expropriation, storm, flooding and other natural disasters as well as any other circumstances that are not the responsibility of A3M (in particular water leaks, power failure and interruption or destruction of data-carrying cables).
Each Party must immediately inform the other Party of a case of force majeure arising in written form and must inform the other Party in the same manner as soon as the event of force majeure has ceased.
§ 19 Written form
All contractual agreements must be made in writing. Oral agreements have been fully implemented by the Parties in the Agreement.
There are no side agreements as of the effective date of the Agreement. All changes or additions to the Agreement require the written form and are only valid if they have been made in writing or have been mutually confirmed in writing. This applies in particular to the waiver of the written form requirement.
§ 20 Applicable law
The law of the Federal Republic of Germany shall apply.
§ 21 Place of performance, place of jurisdiction
21.1 The place of performance for all services arising from the Agreement and the agreed remuneration is Tuebingen.
21.2 If the Parties to the Agreement are merchants, the exclusive place of jurisdiction for any disputes arising from the Agreement is Hamburg.
§ 22 Severability clause
Should one or more regulations of the Agreement be or become invalid or unenforceable in whole or in part, the remaining regulations of the Agreement as well as the validity of the Agreement remain unaffected by this and fully effective.
In the case of the invalidity or unenforceability of one or more regulations of the Agreement the Parties agree, under waiver of the claim of invalidity and any legal consequences resulting from this, that these will be replaced by an effective regulation which is as close as possible to the intent of the ineffective or unenforceable regulation. The same applies should there be a gap in the regulations of the Agreement. Should a statutory form requirement necessary for the effective conclusion of the Agreement not be complied with, the Parties undertake, under waiver of the appeal of invalidity of the Agreement resulting from non-compliance with the statutory form requirement, to comply with the form requirement as soon as possible.
§23 Final clauses
23.1 A3M shall be entitled to include the Customer in a list of references and publish such list. Any other advertising references shall be discussed with the Customer in advance.
23.2 Provisions of the Agreement may only be modified, cancelled or replaced by another Agreement insofar as the corresponding provision of the Agreement is expressly designated as such in the Agreement.
As from: 02-21-2023