General Terms and Conditions

Last revised: January 30, 2019. This version replaces the version dated August 26, 2016, in its entirety.

These terms apply to the use of our software, website, or services, such as consulting or AppDesigner Cloud Services (collectively referred to as “services”). The software may also be part of the services, including its applications, content files, scripts, command sets, and associated documentation (collectively referred to as “software”). Additional terms may apply to certain services or specific software (e.g., end-user license agreements, support and maintenance agreements). By using the services or software – including within trial environments – you agree to these terms. From time to time, new additional terms may be introduced that do not require your explicit consent to become effective. Publication on the relevant homepage is sufficient for them to take effect.

1. Scope of Application

1.1 Component

The following terms and conditions apply to all current and future business relationships concerning the sale, rental, and use of our services (including service offerings), our software, and our mobile apps, including support, maintenance, customization, and training. By using our services, software, and mobile applications, you agree to these terms, resulting in a contract between you and us. We provide our services and deliver our software and mobile applications based on these terms and conditions, the applicable product descriptions or usage terms, and the published pricing conditions. Your acceptance or use of our services and products constitutes acknowledgment of these terms, waiving any conflicting terms and conditions. This also applies if we do not explicitly object to such conflicting terms. Deviating, conflicting, or supplementary terms and conditions—even if known—will not become part of the contract unless explicitly agreed to in writing.

1.2 Data protection

Our privacy policy at https://www.gbs.com/privacy-policy applies to all personal information you provide to us. By using our services or software, you agree to the terms of the privacy policy.
If the software includes third-party components as defined in Section 2.2 (b), you agree that your customer data may be transferred to the third-party provider to the extent necessary for the provision of the service.

1.3 Offers

Our offers are non-binding and subject to change unless explicitly designated as binding in writing. A legal commitment only arises through a mutually signed contract or order confirmation. Before concluding the contract, you have verified that the software specifications or the provided services meet your requirements and needs. You are aware of the essential features and the technical requirements necessary to use the software or services.

1.4 Commissioning

The software is installed and commissioned by you. We may perform the installation on your behalf. However, support services are only provided upon your request. These may include deployment preparation, installation, demonstration of successful installation, onboarding, services, training, and consulting. Such services are billed based on effort unless otherwise agreed.

1.5 Support

Support and/or maintenance services (including updates/upgrades) for purchased software (on-premise) beyond defect remediation during the warranty period are only provided based on a separately concluded support and maintenance agreement. This agreement includes detailed information on availability and the type and scope of support, maintenance, or servicing. An exception applies to rented software. Another exception may be a one-year support and maintenance agreement included with a purchase, which must be specified in our offer.

1.6 Additional terms and conditions

Additional terms may apply to certain services or specific software (e.g., end-user license agreements, terms of use). All content we provide to you (such as software, SDKs, and samples) is made available for use or licensed to you. From time to time, new additional terms may be introduced, which do not require your explicit consent. Their effectiveness is ensured by publication on the relevant homepage.

1.7 Order of precedence

If there is a conflict between the provisions of this agreement and the additional terms, the additional terms shall take precedence with respect to the relevant service or software.

1.8 Amendment

We may update, modify, or discontinue the services or browser-based (on-demand) rented software (including certain parts or features) at any time without liability to you or third parties. However, we will make reasonable efforts to inform you prior to any such change. You will be given sufficient time to download or update your content, if necessary. If we completely discontinue a service or software, you will receive a prorated refund for any prepaid fees covering the unused period.

2. Usage

2.1 Licensing of the services

(a) Right of Use.
Subject to compliance with these terms and applicable laws, you are entitled to access and use the services.
(b) Intellectual Property of GBS Europa GmbH
We (and, if applicable, our licensors) remain the sole owners of all rights, titles, and interests related to the services and software. We reserve all rights not expressly granted under these terms.
(c) Storage
Even if data is stored as part of the services, it is recommended that you continue to regularly back up your content where possible. We may set reasonable technical limits for your content, such as restrictions on file size, storage space, processing capacity, etc. We may suspend the services until the storage limit assigned to your account is no longer exceeded.
(d) User-Generated Content
When accessing our services, you may encounter content you find offensive or upsetting. The only remedy is to stop viewing the content. You may report it to us by clicking the “Report” button, if available.

2.2 Software Licensing

(a) Right of Use
Upon full payment of the agreed fee, we grant you as the licensee a simple, perpetual, non-exclusive right to use the licensed subject matter (hereinafter “license”). For rental licenses, the right of use is limited in time accordingly. All other rights, particularly ownership, copyright, and trademark rights to the software and documentation, remain exclusively with us, unless third-party software components are involved. In such cases, the corresponding rights may belong to the third party.
(b) Third-Party Software – Open Source Software
The software may include components of third-party and/or open source software, which are subject to separate license terms. Where required for lawful use of the software, the applicable third-party or open source license terms will be listed in the installation program or provided in a document following installation. As (sub-)licensee, you agree to use the software only if you also accept these third-party or open source license terms, which take precedence over these terms of use. If you do not accept them, you must refrain from installing and using the software.
(c) Number of Users
You acquire the software for your own internal use within your organization (simple right of use). All devices on which the programs are copied or transferred, whether temporarily or permanently, must be in your direct possession/ownership. Different rules may apply to resellers and business partners, in which case the terms of a partner agreement take precedence over these general terms. Otherwise, the provisions of these terms and conditions apply accordingly. Usage must not exceed the contractually agreed number of workstations or users. You may create the necessary backup copies required for secure operation. Backup copies must, where technically possible, carry the copyright notice of the original media. Copyright notices must not be deleted, altered, or suppressed.
d) Additional Licensing
The software is delivered as agreed, including the offered modules. If the licensee requires additional licenses or modules, a separate offer and its acceptance are necessary. The associated license fees must be paid as invoiced. The provisions of these terms and conditions also apply to such additional licensing.
(e) Transfer of Software
Any transfer of the software (in whole or in part) to a third party requires our written consent and is subject to the third party providing a written declaration to us confirming compliance with the terms of this agreement. All protection notices contained in the software or on the provided documentation and data carriers, especially copyright and trademark notices, serial numbers, and other identification features, must not be removed or altered under any circumstances.
(f) Proof, Audit
You must ensure compliance with the above usage rights and provide proof upon request (self-audit). In cases of justified doubt, a sworn affidavit and civil legal access to documentation may be required. If a violation is found where the submitted report deviates by more than 5% of the annual license fee, we may revoke all usage rights to the software without any refund claims on your part.
Alternatively, we may, at our discretion, demand the applicable license fees for the unauthorized use, plus any costs incurred during the audit.

2.3 Licensing of Mobile Apps

For mobile applications, the terms apply accordingly (see Section 2.2). However, the license terms contained within the respective mobile applications take precedence, as they are tailored to the specifics of mobile usage.

2.4 Other Types of License

(a) Not for Resale Version
We may designate the software or services as a “trial version,” “evaluation version,” “not for resale version,” or similar (hereinafter “NFR version”). You may install and use the NFR version only during the specified period and solely for the purposes defined at the time of provision. Any materials created using the NFR version may only be used for non-commercial purposes.
(b) Pre-release Version
We may designate the software or services as a pre-release or beta version (“pre-release version”). This version is not the final product and may contain errors that could cause failures and data loss. The pre-release version may not be approved for commercial use. You must immediately stop using the pre-release version and destroy all copies if we request it or if a commercial version is released. Any separate agreement we conclude with you regarding the pre-release version overrides the terms stated in this section.

3. Your Content

3.1 Ownership Rights

In connection with your use of our services, you retain all rights and ownership of your content. We do not claim ownership of any data you have entered or applications you have developed. You are solely responsible for ensuring that your applications and content are technically usable by end users. If adjustments are required due to releases of our software or services, these fall under your responsibility.
We reserve the right to delete any data collected or applications developed during trial periods four weeks after the trial, unless a contract has been concluded within that time.

3.2 Rights to Your Content for Operating the Services

3.3 Access by Us

We do not access, view, or listen to your content unless reasonably necessary for the performance of the services. Such actions may include (a) responding to support requests, (b) detecting, preventing, or otherwise addressing fraud, security issues, illegal activities, or technical problems, and (c) enforcing these terms.

3.4 Termination of Rights

3.5 Sharing Your Content

(a) Sharing
Some services may include features that allow you to share or publish your content. “Sharing” means sending, providing, transmitting, uploading, or otherwise making content available (to us or other users) through your use of the services. Carefully consider what content you share or publish, as you are fully responsible for any content you make available.

4. abusive use

You may not misuse the services, software, or content we provide to you. For example, you are not permitted to:
(a) copy, modify, distribute, stream, sublicense, or resell the services, software, or content,
(b)allow or enable others to use the services, software, or content using your license information,
(c) access or attempt to access the services by any method other than through the interface we provide or as authorized by us,
(d) circumvent access or usage restrictions intended to prevent certain uses of the services,
(e) share content or engage in conduct that infringes on the intellectual property rights of others (“intellectual property rights” means copyrights, moral rights, trademark, trade dress, patent and trade secret rights, rights against unfair competition, privacy rights, publicity rights, and all other proprietary rights),
(f) impersonate another natural or legal person or misrepresent or falsely state your affiliation with any other natural or legal person,
(g) attempt to disable, interfere with, or destroy the services, software, or hardware,
(h)violate applicable law.

5. Fees and Payment

5.1 Due Date

5.2 Additional Services

Travel expenses, per diem costs, accessories, and shipping costs are to be reimbursed additionally based on actual expenses. Additional services requested by you (e.g., consulting and support during software installation, customization to your requirements) will be charged according to our current price list or a specific offer.

5.3 Net Prices

Fees/prices are net amounts and will be invoiced plus applicable VAT.

5.4 Set-off

You may only set off claims that are undisputed by us or have been legally established. Except as provided under § 354a of the German Commercial Code (HGB), you may assign claims from this contract to third parties only with our prior written consent.

5.5 Default

5.6 Inability to Pay

In the event of your financial inability to fulfill your obligations to us, we may terminate continuing obligations without notice. You are required to inform us promptly and in writing of any impending insolvency.

5.7 Retention of Title

We retain ownership and any rights to be granted in the services until full payment of the agreed compensation has been received.

6. Your Warranty and Indemnification Obligations

6.1 Warranty

By uploading your content to the services, you confirm that you have (a) all necessary licenses and permissions to use and share your content, and (b) the required rights to grant the licenses in accordance with these terms.

6.2 Freistellung

You are obligated to indemnify us and our subsidiaries, affiliates, partners, and licensors from any claims, demands, losses, and damages, including reasonable attorneys’ fees, arising from or in connection with your content, your use of the services or software, or any violation of these terms by you.

7. Warranty

7.1 Mangel

We warrant that our services are provided with commercially reasonable care and expertise according to the service description by us or our partners. Our software meets the agreed-upon specifications, is suitable for the intended contractual use, or otherwise for usual use, and meets the quality standard typical for this type. Functional impairments of the services or software caused by environmental conditions, malfunctioning, or hardware/software defects of components not supplied by us do not constitute a defect. There are no claims for defects in case of only insignificant deviations from the contractual specifications or usability.

7.2 Rectification of Defects

Unless otherwise specified in the additional terms, the services and software are provided without warranty. To the extent permitted by law, we exclude all express and implied warranties, including the implied warranty of non-infringement, merchantability, and fitness for a particular purpose. We assume no responsibility for the content of the services. Furthermore, we exclude any warranty that (a) the services or software will meet your requirements or be continuously uninterrupted, timely, secure, and error-free, (b) the results obtained from using the services or software will be effective, accurate, or reliable, (c) the quality of the services or software will meet your expectations, or (d) errors or defects in the services or software will be corrected.

In the case of defects, we may first attempt to remedy the defect. The remedy can be carried out at our discretion by either eliminating the defect, delivering a program without the defect, or by providing options to avoid the effects of the defect.

You may assist us in the error analysis and defect remediation by clearly describing the issues, providing comprehensive information, and granting us the time and opportunity necessary for the defect remediation. We may perform the remediation on-site or at our premises. We may also provide services via remote support. You are responsible for ensuring the necessary technical conditions and granting us access to your IT systems for defect remediation after prior notice.

We are entitled to charge additional costs if the software has been modified, used outside the specified environment, or operated incorrectly. We may also demand reimbursement of expenses if no defect is found. The burden of proof lies with you. § 254 BGB applies accordingly.

If a remedy is refused, ultimately fails, or is unreasonable for you, you may withdraw from the contract or reduce the compensation reasonably according to the rules of Section 10 and demand compensation for damages or reimbursement of expenses from us. These claims, as well as claims for damages and reimbursement of expenses, are subject to the statutory limitation periods.

7.3 Exclusion

We specifically exclude any liability for claims arising from your use of the services or software. Access to the services or software by you and its use are at your own discretion and risk, and you bear sole responsibility for any damage to your computer system or any data loss resulting from the use of the services or software, or access to them.

8. Limitation of Liability

8.1 Limitations

Unless otherwise specified in the additional terms, we accept no liability to you or third parties for (a) loss of use, data loss, intangible losses, or loss of profit, (b) special, incidental, or indirect damages or consequential damages of any kind (even if we were notified of the possibility of such damages), including (c) damages arising from loss of use, data loss, or loss of profit, regardless of whether this was foreseeable, (d) damages based on a liability theory, including breach of contract, warranty violation, negligence, or any other tort, or (e) damages arising from any other claim related to your use of the services or software or access to them.

8.2 Intent and Gross Negligence

In the case of gross negligence, intentional misconduct by us (or our employees), death, or personal injury, our liability is not limited or excluded by any provision contained herein.

9. Termination

9.1 Termination by You

You may terminate the use of the services at any time. Your termination does not release you from any obligations to pay outstanding fees. The respective durations or extensions of licenses and usage rights, as well as the corresponding notice periods, are outlined in the product- and service-specific agreements (such as license or terms of use, order confirmations, support and maintenance agreements).

9.2 Termination by GBS Europa GmbH

BS Europa GmbH may revoke the above-mentioned usage rights or terminate the existing contract with you for an important reason. An important reason exists, in particular, if you fail to pay the fees for the software or services on time, or if you materially breach the terms of use of GBS Europa GmbH despite written warning. We are also entitled to terminate the contract if we decide to discontinue the services or software, in whole or in part (e.g., if it becomes impossible for us to continue offering the services in your region due to a change in the law), or

9.3 Continuation

After the expiration or termination of these terms, any licenses granted by you that are indefinite, your indemnification obligations, as well as our warranty exclusions or liability limitations, and dispute resolution provisions under these terms will remain valid. Upon expiration or termination of the services, the software may no longer be fully or partially functional without prior notice after the end of the contractually agreed term.

10. Investigations

10.1 Review

10.2 Disclosure

We may access or disclose information about you or your use of the services (a) when required by law (e.g., if we receive a valid subpoena or search warrant), (b) to respond to customer service requests you have made, or (c) if we deem such action necessary in our discretion to protect the rights, property, or personal safety of ourselves, our users, or the public.

11. Confidentiality

11.1 Definition of Confidential Information

All information disclosed between the parties that includes, but is not limited to, technical, scientific, or business-related information, including analytical procedures, experimental data, test results, methodologies, techniques, processes, know-how, inventions (whether patentable or not), business concepts, market forecasts, product development planning, regardless of the form in which such information is presented (whether written, oral, graphical, photographic, audiovisual, recorded on magnetic tapes or other types of computer disks, prototypes, samples, or any other form), will be treated as CONFIDENTIAL. Such protected and confidential information will hereinafter be referred to as “Confidential Information.”

11.2 Disclosure of Confidential Information

The parties acknowledge that the exchange of Confidential Information is necessary to facilitate the initiation of significant business discussions. Regarding the Confidential Information, the parties agree to require their executives, employees, and other representatives to treat all Confidential Information received from each other and/or their executives, employees, and representatives as strictly confidential and not to use, disclose, or allow third parties access to such Confidential Information for any other purpose.

11.3 Disclosure to Third Parties

Upon the effective date, the parties agree not to disclose Confidential Information to any third party or allow any third party access to any or all Confidential Information disclosed by either party, without the consent of the disclosing party. Additionally, they agree not to use such information for any purpose other than the one for which the disclosing party has provided written consent. It is at the sole discretion of the disclosing party to approve any disclosure to a third party by the other party, provided that such third party is identified to the disclosing party and has agreed in writing to be bound by the terms and conditions of this agreement.

11.4 Exceptions

The above confidentiality obligations do not apply to Confidential Information that either party can clearly demonstrate falls under one of the following categories:
i. Confidential Information that is publicly available at the time of disclosure to the receiving party, or is publicly known or otherwise generally accessible;
ii. Confidential Information that, after disclosure to the receiving party, becomes publicly known or otherwise generally accessible, through no fault of the receiving party;
iii. Confidential Information that must, by law, be included in a submission to a regulatory authority for review or approval; or
iv. Confidential Information that must be disclosed by law. Neither party shall use or disclose the other party’s Confidential Information in relation to any of the above exceptions without first notifying the other party in writing about the use or disclosure at least fourteen (14) days in advance, unless prohibited by law or a court order. Confidential Information is not considered to fall under the aforementioned exceptions merely because it is part of broader public information.

11.5 Use of Confidential Information

The receiving party will use the Confidential Information provided by the disclosing party solely for the purpose of evaluating it in connection with negotiations regarding a business agreement between the parties or for the execution of the contract.

11.6 General Degree of Care

Without limiting the foregoing, the parties agree to apply the same degree of care in fulfilling their confidentiality obligations hereunder as they apply to protect their own Confidential Information. Furthermore, the parties agree that the obligations under Sections 11.3 and 11.4 shall survive the termination of any subsequent business agreement or collaboration, regardless of how such an agreement is terminated.

11.7 Return of Confidential Information

Either party may, at any time, request the return of all Confidential Information (including notes created from orally disclosed Confidential Information) and all copies thereof that it has received from the other party or on its behalf, and the respective party agrees to comply with such requests promptly. Additionally, Confidential Information shall be returned immediately if business discussions or collaboration are terminated by either party upon written notice.

11.8 Limitation of Liability

In the event that one party breaches any of the confidentiality obligations, the liability of the breaching party is limited to €5,000.00 (five thousand) per breach and a total of €20,000.00 (twenty thousand) for all breaches.

11.9 Surviving Provisions

The confidentiality obligations apply for the duration of the business relationship and for a period of three (3) years after its termination.

12. Dispute Resolution, Governing Law

12.1 Procedure

In the event of concerns or disputes, you agree to first attempt to resolve the issue informally by contacting us.

12.2 Jurisdiction

The law of the Federal Republic of Germany shall apply to all disputes arising from this contract. For any potential disputes with GBS Europa GmbH arising from a business relationship or its initiation, the place of jurisdiction, insofar as permitted by law, shall be the location of GBS Europa GmbH. The place of performance is Karlsruhe.

13. Compliance with Licenses

14. Modification

15. Miscellaneous

15.1 German Version

For the interpretation and construction of these terms, only the German version shall be authoritative.

15.2 Communication

You may send communications regarding these or other terms to us at the following address:
GBS Europa GmbH, Zur Giesserei 19-27B, 76227 Karlsruhe, Germany, Attn: Legal Department.
We may notify you via email, mail, through publications within the services, or by other legally permissible means.

15.3 Entire Agreement

These terms and conditions represent the current terms of business between you and us regarding your use of the services and software, and supersede all previous general terms and conditions between you and us. This does not apply to terms of use, licensing terms, maintenance and support terms, or similar provisions specifically related to our business relationship.

15.4 Severability

If any provision is found to be unenforceable, it will not affect the enforceability of the other provisions. You agree, together with us, to replace such provisions with an effective provision that most closely aligns with the economic intent of the unenforceable provision. The above also applies in the case of gaps.