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2023-09-01 Atlas General Terms and Conditions

Atlas Metrics General Terms & Conditions

for
Atlas Metrics GmbH
Adalbertstr. 39
10179 Berlin
Germany

These General Terms and Conditions ("GTC") apply to the services of Atlas Metrics GmbH, Adalbertstraße 39, 10179 Berlin, Germany (also referred to as "we" or "Atlas Metrics") provided to customers (hereinafter "customer" or "you"). General terms and conditions of the customer do not apply, unless we expressly agree to their applicability. With our services and our GTC we exclusively address entrepreneurs in the sense of § 14 BGB (German Civil Code) as well as legal entities under public law and special funds under public law, but not to consumers (§ 13 BGB).

Preamble

If you have concluded a License Agreement, accepted an offer of us for the provision of Services or have placed your order via our order process including the subsequent order confirmation (collectively hereinafter also referred to as the "Agreement" or “License Agreement”), you acquire the services & rights subject to any special agreements in the license agreement, in your order or in the order/order confirmation.

§ 1 Overview

Atlas Metrics offers a software to organize, manage and communicate ESG and other data (“Software Services”), and provides consulting services in relation to ESG issues (“Consulting Services”) (jointly hereinafter any services provided and offered by Atlas Metrics also referred to as "Services" in their entirety). Section 1 of these GTC provides for legal terms applying to our Software Services and Section 2 of these GTC provides for legal terms applying to our Consulting Services.

The Services under this Agreement may include the components listed below. An overview of our Services can be found in our Atlas Metrics Product Overview (“Service Description”). which is available in its respective version on our website or can be found as attachment to the Agreement. The specific Service components that we provide in the contractual relationship with you are set out in the License Agreement, our offer, your order or the order/order confirmation.

If we process personal data on your behalf within the contractual relationship with you, this processing shall be carried out on the basis of the Atlas Data Processing Addendum ("DPA") pursuant to Article 28 of the GDPR/DSGVO, which shall apply immediately when the agreement becomes effective. The applicable DPA is available in its respective version on our website or can be found as attachment to the Agreement.

Section 1 - Software Services

§ 1 Object of Services

  1. SaaS Services

  1. Our Software Services are SaaS (Software as a Service) solutions (hereinafter also "Software", "Software Services" or "SaaS Services").
  2. An overview of our entire Software Service portfolio can be found in the Service Description, which is available in its respective version on our website or can be found as attachment to the Agreement.
  3. We make our Software Services available to you by offering you a "subscription model", i.e. legally as rental service for the duration of our contractual relationship.
  4. The specific service components that we provide in the contractual relationship with you result from the License Agreement, our offer, your order or the order/order confirmation.

  1. Web & Server Hosting

  1. We also provide web & Server hosting services in relation to our SaaS Services. Our Web & Server hosting services include in particular the provision of an IT environment for our Software. The IT environment is created within one or more servers. These servers are located locally with us or in rented data centers. They can also consist of virtual private servers or be rented from professional hosting providers.
  2. We will continue to ensure that your stored data can be accessed via the Internet. You shall remain the sole owner of the data and may demand its return at any time. You are not entitled to give your storage space to a third party for use.

  1. Support Services

  1. These Support Services consist in particular of the installation of security updates and the regular further development of our Services.
  2. In addition, we offer direct availability for you for urgent assistance in support cases that are not already covered by our performance obligation to maintain the Software.  
  3. You can reach our email support around the clock with a response Monday through Friday from 09:00 - 17:00 CET at support@atlasmetrics.io

§ 2 Remuneration

  1. You will generally purchase our Services at the conditions of the selected price model or according to the conditions of the individual offer prepared for you.
  2. Any remuneration shall be subject to value added tax at the statutory rate applicable at the time and place of performance of the Service. We are entitled to collect all remuneration via payment service providers. If we do so, you must also observe their terms and conditions when using these payment service providers. We do not charge you a separate fee for any of the payment service providers.
  3. The remuneration for the Services to be provided by us shall generally be paid by you in advance for the corresponding contractual month. We shall also be entitled to invoice you for the respective remuneration for up to 12 months in advance. If our remuneration is in the form of a commission or other consumption-based payment, we shall be entitled to invoice you monthly in arrears for the respective commission or remuneration incurred for the previous month.
  4. Our invoices shall become due upon receipt by you and shall be paid without deductions no later than 10 business days upon receipt to our account specified in the invoice. In the event of default, we shall be entitled to demand default interest in the amount of 9% points above the base interest rate.
  5. We have the right to increase our prices if the prices of our service providers increase, if this is necessary to compensate for inflationary price changes, if the German consumer price index increases accordingly or in the event that we wish to price our business model differently. You will of course be notified in advance of any price increases. If you do not agree with a price increase, we will try to find a solution in joint consultations. If no solution is found, each party has the right to terminate this Agreement with a notice period of 1 month after the failure of the negotiations.

§ 3 Term

  1. The term of the Agreement shall be concluded for the term selected in the offer, in the License Agreement or in the order process, otherwise and in the absence of concrete specifications for the standard term of one year from the conclusion of the Agreement ("Basic Term").
  2. Termination is possible at any time. The provisions on termination are set out in the offer, the License Agreement or the order process. In all other respects, i.e. in the absence of regulations in the aforementioned documents and processes, the following applies: The notice period is one month to the end of the term for both parties. The termination can be made in text form. In the absence of termination, the contract is extended in each case by the duration of the Basic Term.
  3. An upgrade of the selected price model or an extension of the booked Services is possible at any time with immediate effect. The downgrading of a price model is possible at any time with effect from the respective following month. A refund of the costs paid/to be paid for the current month will not be made.
  4. When the termination takes effect, access to our Services will be blocked for you and your users. You can export the content processed with our Services until the termination takes effect. Thereafter, we will completely delete your access. Support Services in connection with the termination may be provided by us upon request and, if necessary, for a separate fee.
  5. The right to extraordinary termination of this Agreement for good cause remains unaffected.

§ 4 Online Booking

  1. If you book your access to our Software Services and Consulting Services via our online ordering process, the following provisions shall apply in addition to other contractual terms and conditions.
  2. The License Agreement for the use of our Services is concluded through the following steps:

§ 5 Principles for the provision of our Services

  1. With our Software and its functions, we provide you with a technical basis for the purposes to be depicted hereby by you within the limits of the purchased Software Services (see in particular the Service Description). The logics in our Software was built with the best knowledge of the applying laws and regulation. Anyhow, we do not assume any responsibility for the actions performed with our Software or for the contents processed with our Software. All actions performed and content processed by you with our Software are governed exclusively by law or the agreements and contracts that you have concluded with your customers, partners, employees, etc., with whom you or for whom you use our Software and are subject to your own review. The aforementioned applies to our Consulting Services in an appropriate manner.
  2. The provisions of rental law apply to the use of our Software in the subscription model. Maintenance measures such as updates, patches, hotfixes are part of our Service. Further support shall be offered upon corresponding agreement. Beyond the maintenance measures, the statutory rental defect warranty law shall apply (see below).
  3. Adjustments, changes and additions to the Software as well as measures that serve to determine and remedy malfunctions will only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons.
  4. You may not transfer our Services to third parties for commercial use.
  5. We are entitled to have our Services rendered by third parties and subcontractors.
  6. We reserve the right to modify and adapt our Services as well as the documents and attachments relating thereto, taking into account your interests, provided that we do not thereby violate our contractually assumed main performance obligations towards you. We will inform you in due time, at least 4 weeks in advance, about essential modifications & adjustments that change the contractual relationship with you. You have the right to object to modifications. If you object, we will jointly try to find alternatives. If these are not found, both parties have the right to terminate this Agreement extraordinarily.
  7. In the event of force majeure, we shall be released from our obligation to provide the Services for the corresponding duration, provided that it is actually impossible for us to provide the Services. Force majeure is defined as fire, explosion, flood, war, blockade, embargo, pandemic and industrial action for which we or a subcontractor are not responsible.
  8. You are responsible for the actions of your users and are liable for them as for your own actions.  
  9. Links or functionalities in our Software may take you to third-party websites and software that are not operated by us and for which we are not responsible. Such links or functionalities are either clearly marked or recognizable by a change in the address line of the browser or a change in the user interface.
  10. When using our Software, you are prohibited from:
  1. We are entitled to refuse access to our Software after giving legitimate reasons and to block or exclude you as a customer or your users or to terminate the Agreement extraordinarily if we receive repeated complaints about you or if you repeatedly fail to comply with the requirements of the Agreement and these GTC, other requirements communicated by us or compliance with legal regulations. We will inform you of this without delay and give you the opportunity to comment. Before a complete block or a complete exclusion, we will inform you 30 days in advance, stating the relevant reasons. If you remove the reason that led to the rejection, blocking or exclusion, we will consider a resumption of your Services on our platform.

§ 6 Marketing Admission

We are entitled to use your name and company logo (a) publicly on the website of Atlas Metrics, and (b) privately in proposals and business development materials to prospective clients. Such logo use shall only be in the context of advertising your portfolio of Atlas Metrics, and to not to infer any other kind of relationship between the Parties nor to disclose any confidential information. We provide you with a license to use the company’s name and logo of Atlas Metrics, which may be used (a) publicly on your website (b) privately in materials relating to your ESG strategy. Such logo use shall only be in the context of advertising the provision of products/services by Atlas Metrics, and to not to infer any other kind of relationship between the Parties nor to disclose any confidential information.

§ 7 General Liability

  1. We shall be liable, subject to separate provisions in the Agreement or in these GTC, in particular in §§ 7 and 8, for direct property damage and financial loss caused by us, our legal representatives, vicarious agents and the subcontractors engaged by us up to EUR 10,000 per damaging event, up to a maximum of EUR 20,000 per year of the Agreement term, irrespective of the number of damaging events.
  2. In the event of simple negligence, our liability shall be limited to the foreseeable damage typical for the Agreement. Aside from the breach of essential contractual obligations, our liability for compensation for indirect material damage and financial loss, in particular loss of profit, shall be completely excluded in the event of simple negligence. In case of force majeure as well as in case of gratuitous use of our Services, our liability is excluded altogether in case of simple negligence. Essential contractual obligations are those whose fulfillment makes the proper execution of the Agreement possible in the first place and whose fulfillment may be relied upon. Both parties agree that the contract-typical and foreseeable damage is limited to the amount of twice the order value.
  3. We shall be liable to an unlimited extent in the event of injury to life, body or health as well as in the event of intentional or fraudulent conduct. The same shall apply in the event of the written assumption of a guarantee for the quality or durability of a service to be provided by us.
  4. Our liability under the Product Liability Act shall remain unaffected.
  5. You shall be liable for the actions of your employees, legal representatives, vicarious agents and any other users of our Services as for your own actions. In addition, within the scope of your responsibility (see in particular § 5 para. 1 of these GTC), you shall indemnify us upon first request against liability claims by third parties due to damage caused to third parties and other affected parties by your use of our Services.

§ 8 Warranty

  1. In the event of material defects and defects of title within our Software Services (not our Consulting Services), German statutory provisions shall apply subject to the provisions of this clause. Section 377 of the German Commercial Code (HGB) shall apply. All claims for defects shall be subject to the condition of your immediate notification of defects pursuant to Section 377 (1) and (3) HGB.

  1. Material Defects

  1. In the event of material defects, you shall initially be entitled, at our discretion, to free rectification or new delivery (hereinafter "rectification"). If the defect cannot be remedied after two attempts at rectification, it shall be examined whether your interests can be met by an alternative solution before any termination or withdrawal.
  2. In the case of rent, strict liability for damages for defects existing at the time of transfer is excluded under Section 536a (1) of the German Civil Code (BGB).

  1. Defects of Title

  1. Our Software Services shall be provided to you free of third-party rights. Please inform us immediately in text form if you become aware of third party rights to our Software Services.
  2. At our request, you shall provide us with the defense against claims asserted by third parties, provide us with all information necessary for this purpose, give us explanations and grant us powers. In return, we shall indemnify you against claims for payment and damages based on the rights of third parties.
  3. If our Software Services are actually encumbered with the rights of third parties, we shall be entitled, at our discretion, to,  

  1. General

  1. Claims for defects shall not apply if you have made changes to the Software Services without our prior consent or if the Software Services are used by you for a purpose not covered by this Agreement and this action is solely responsible for the occurrence of the defect.
  2. All claims based on defects shall become statute-barred after 12 months, unless they are already limited or excluded in accordance with the aforementioned provisions.

§ 9 Rights of Use

  1. License Terms

  1. You shall receive a simple, non-exclusive right to use our Services, which shall be limited in time to the term of the Agreement and unlimited in territory.
  2. Your majority-owned group companies are equally entitled to use the Software subject to special remuneration. An independent authorization to sublicense or otherwise transfer your rights of use is not associated with this. This right of use shall end if the group company no longer meets the requirements of an affiliated company (e.g. within the meaning of §§ 15 et seq. of the German Stock Corporation Act).
  3. You are not entitled to exhibit, publicly reproduce, in particular make publicly available, edit, redesign, translate, decompile or otherwise transform the Software. Your rights under Sections 69d (3), 69e German Copyright Act (UrhG) shall remain unaffected.
  4. We shall be entitled to use our Services, including new releases, as well as any other general know-how, experience, methods and procedures developed in connection with the Agreement for other purposes (provision to third parties, as open source software, etc.).
  5. Unless otherwise agreed, test and demo licenses shall be limited to a term of up to 30 days.

  1. Open Source Software

  1. We grant you such rights to the open source software contained in our Software Services that can be transferred to you in accordance with the license terms applicable to us. You are permitted to use our Software Services exclusively within the scope of these license terms. We do not assume any warranty or liability for any use beyond this.

§ 10 Transfer to Third Parties

  1. We are entitled to transfer the Agreement to a legal successor or a group company affiliated with us. We will inform you of this in text form at least two months before the planned transfer.
  2. A transfer of the Agreement to a third party requires your prior consent. In the event of your objection, the Agreement will continue unchanged. The objection shall be deemed good cause for extraordinary termination of the Agreement by us.

§ 11 Confidentiality

  1. In the course of our cooperation, both parties shall gain knowledge of trade secrets of the other party or third parties. A trade secret is information which is neither generally known nor readily accessible to persons who normally handle this type of information, is therefore of economic value and is therefore subject to appropriate secrecy measures (see Section 2 German Trade Secret Act (GeschGehG)). Furthermore, a trade secret is information which is marked as a trade secret, which is protected by industrial property rights or copyright, which is covered by banking secrecy or data protection and for which there is a justified interest in secrecy. A trade secret shall not be information which is known to the respective other party prior to disclosure, which has become known to the public after disclosure without the involvement of the disclosed party, which the disclosed party has learned through an authorized third party and which the disclosed party has developed itself.
  2. The Receiving Party, as well as all those who come into contact with trade secrets as intended, shall be obliged to treat the trade secrets as strictly confidential and to use them or disclose them to third parties and employees only if this is necessary in connection with the business purpose. In all other respects, the receiving party shall protect the trade secrets from disclosure to third parties.
  3. Objects as well as files or other incorporeal objects on which trade secrets are located shall be deleted or surrendered to the disclosing party without undue delay upon request of the disclosing party or upon termination of the contractual relationship at the latest.

§ 12 Final Provisions

  1. The entire contractual relationship between the Parties shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
  2. The place of jurisdiction for all disputes arising from the contractual relationship shall be the competent court at our registered office.  
  3. Amendments and supplements to the GTC as well as to the entire Agreement existing between us must be made in text form to be effective. Amendments and supplements to the Agreement that are (have to be) made by us due to changed legal or technical requirements for our service provision without any negative effect on our service commitments shall become effective if you do not object to an amendment in text form within one month after receipt of an amendment notification and we have informed you in advance of your right to object. If you object to the change, the Agreement shall continue to apply unchanged and we shall be entitled to extraordinary termination of the Agreement with one month's notice to the end of the next calendar month. Changes and amendments to the Agreement that we wish to make due to changes in performance, remuneration or other commercial or operational requirements will only become effective if you expressly consent to them. This consent can be given by clicking a consent button in the change notice (email or pop-up as part of using our Services) or in any other simple & transparent way we provide for you. The text form also applies to an amendment of this form clause. The priority of individual ancillary agreements remains unaffected. The priority of individual ancillary agreements remains unaffected. The aforementioned deadlines do not apply and there is only a right to information about changes to the Agreement, provided that the changes are necessary to avert an unforeseen and imminent danger in order to protect you from fraud, malware, spam, breaches of data protection or other cybersecurity risks.
  4. Should one of the provisions of the Agreement be invalid or should the Agreement contain a loophole requiring regulation, this shall not affect the validity of the remaining or loophole provisions. In this case, the parties undertake to replace or complete the invalid or incomplete provisions with provisions that come closest in economic terms to the invalid or incomplete provisions.

Section 2 - Consulting Services

§ 1 Object

  1. The Consulting Services performed are the successful performance of the activities outlined in the License Agreement, our offer, your order or the order/order confirmation. Consulting Services differ from our Software Services since no Software will be licensed subject to our Consulting Services but consulting performances will be conducted according to the stipulations of this Sec. 2.  
  2. We will closely and regularly coordinate with you in the performance of our Consulting Services and deliver regular reports on its results.
  3. Unless otherwise agreed on, the Consulting Services will be oriented to the following procedure model which is, of course, subject to separate agreements:
  1. We will perform all Consulting Services in accordance with your requirements in a high-quality and conscientious manner. Unless otherwise agreed, our performance obligations shall be rendered within the framework of an agile procedure.
  2. We are permitted to make use of third-party services or third-party software, provided that we make sure that you are not thereby restricted in its use of our Consulting Services.

§ 2 Your Cooperation Obligations

  1. You will provide reasonable support for the successful performance of our Consulting Services at each stage.
  2. In particular, you shall provide us with the information and data from your sphere necessary for the proper performance of our Consulting Services in a timely manner.

§ 3 Performance

  1. We warrant that our Consulting Services are free from defects in quality and title. With regard to our Consulting Services the German law on Services (Sec. 611 ff. German Civil Code – BGB) shall apply. Only if specifically agreed on, the law on works and the provisions for liability for defects for work performances pursuant to Sec. 634 et seq. BGB shall apply. Work performances are subject to acceptance in accordance with the provisions of Sec. 640 BGB.
  2. If any dispute or disagreement arises out of or in connection with the conduction of our Consulting Services, the Parties shall first endeavor to settle it informally in good faith before seeking legal proceedings.
  3. Should significant weaknesses and deficiencies in the performance of our Consulting Services be identified you  shall be entitled to withhold the agreed remuneration to a reasonable extent after a reasonable and unsuccessfully expired deadline for remedying the weaknesses and deficiencies.

§ 4 Rights of use

  1. By providing our Consulting Services, we irrevocably transfer to you the non-exclusive, transferable, perpetual and worldwide right to use our Consulting Services for your own business purposes without restriction.
  2. We remain entitled to protect design rights, trademark rights, database rights, rights to know-how and any other industrial property rights as well as rights in connection with the conduction of our Consulting shall stay in full with us.

§ 5 Liability

  1. The Parties shall be liable without limitation in the event of intent, gross negligence and culpable injury to life, body or health.
  2. Notwithstanding the cases of unlimited liability, the Parties shall be liable to each other in the event of a slightly negligent breach of duty only in the event of a breach of essential contractual obligations, i.e. obligations the fulfillment of which is a prerequisite for the proper performance of the contract or the breach of which jeopardizes the attainment of the purpose of the contract and on the compliance with which the other party may regularly rely, but limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract.
  3. The above limitations of liability shall not apply to liability under the German Product Liability Act (Produkthaftungsgesetz) or to guarantees given in writing by one of the Parties.
  4. We are not liable for the intended or purposed use of our Consulting Services. We are also not liable for any conclusion drawn from or any further advancement made in connection or subsequent to our Consulting Services.

§ 6 Remuneration

  1. You will generally purchase our Consulting Services at the conditions of the License Agreement or according to the conditions of the individual offer prepared for you.
  2. Any remuneration shall be subject to value added tax at the statutory rate applicable at the time and place of performance of the Consulting Services. We are entitled to collect all remuneration via payment service providers. If we do so, you must also observe their terms and conditions when using these payment service providers. We do not charge you a separate fee for any of the payment service providers.
  3. The remuneration for the Consulting Services to be provided by us shall generally be paid by you in advance for the corresponding contractual month. We shall also be entitled to invoice you for the respective remuneration for up to 12 months in advance. If our remuneration is in the form of a commission or other consumption-based payment, we shall be entitled to invoice you monthly in arrears for the respective commission or remuneration incurred for the previous month.
  4. Our invoices shall become due upon receipt by you and shall be paid without deductions no later than 10 business days upon receipt to our account specified in the invoice. In the event of default, we shall be entitled to demand default interest in the amount of 9% points above the base interest rate.

§ 7 Term

  1. The term of the Agreement on our Consulting Services shall be concluded for the term selected in the offer, in the License Agreement or in the order process.
  2. Termination is possible for you at any time. The provisions on termination are set out in the offer, the License Agreement or the order process. In all other respects, i.e. in the absence of regulations in the aforementioned documents and processes, the following applies: The notice period is one month to the end of the term for both Parties. The termination can be made in text form. In case of a termination before the full conduction of the agreed Consulting Services, we are entitled to demand a remuneration at as reasonable amount, representing the work we have done so far, our costs and investments on this consulting project plus our expectation to be able to fully conduct the agreed Consulting Services however not exceeding the remuneration agreed for the full performance of our Consulting Services.

§ 8 Others

§§ 4, 6 ,10, 11 and 12 of Section 1 “Software Services” shall apply to this Section 2 -  Consulting Services accordingly.