General Terms and Conditions (T&C)

1. Preambel

APARAVI Software Europe GmbH, Infanteriestraße 11, 80797 Munich, Germany (hereinafter referred to as „Contractor“) provides the APARAVI Platform, a software solution that enables companies to find, protect, control, and master unstructured data, regardless of where it is stored (hereinafter referred to as the „APARAVI Platform“ or „Software“). The use of the APARAVI Platform is governed by these APARAVI Platform Terms and Conditions. The provision of the Software is agreed upon in one or more orders, which, together with these APARAVI Platform Terms and Conditions, constitute the contract between the client and the contractor regarding the provision of the software. The provision of additional services such as setup, installation, configuration, and other professional services („Services“) will be regulated separately if applicable.

2. APARAVI Platform

The APARAVI Platform enables the client to collect information about unstructured data from various sources, aggregate it centrally, and visualize the results. The APARAVI Platform consists of the following components, all of which are installed on-premises:

• APARAVI Platform (Aggregator)
• APARAVI Node (Collector)
• APARAVI Licence Service

3. Usage Rights

3.1. The contractor grants the client, for the duration of the contract and subject to the condition precedent of full payment of the agreed compensation, a paid, worldwide, non-exclusive, and non-transferable right to use the software in accordance with its intended purpose for their own purposes within the framework of the contractual provisions. Use for one’s own purposes includes the proper use of the software for general business purposes of the client and the processing of the client’s data. It does not include the use of the software for third parties, for example, as a service provider or otherwise granting or facilitating use to third parties. The client is entitled to allow the use of the software by their employees or third parties for their own purposes.

3.2. The client is responsible for the use of the software by their users and for any damages caused by negligent or intentional breaches of duty by their users.

3.3. The client does not receive any rights to the source code of the software.

3.4. Regarding specific analyses and work results created using the software based on the client’s data, the client is granted an exclusive usage right.

3.5. Unless otherwise agreed, all rights to the software and services provided or developed under this contract remain solely with the contractor. All rights to any modifications, developments, or improvements to the products or services made by the client also remain exclusively with the contractor.

3.6. The software may contain open-source software components. The use of these components is governed exclusively by the respective terms of use of the open-source software components, which are transmitted and/or referenced as part of the open-source software components. No provision of these APARAVI Platform Terms affects the rights or obligations of the client arising from the respective terms of use of the open-source software components. In the event of conflicts or contrary provisions between the license terms of the open-source software and the provisions of these APARAVI Platform Terms, the license terms of the open-source software take precedence.

3.7. The usage rights for the software also extend to fixes, patches, developments, and updates that the contractor provides to the client. The right to updates does not include the right to usage rights for new/additional products and functionalities provided as separate products/modules.

3.8. The contractor provides the software and documentation of the software in electronic form.

3.9. Unless otherwise agreed or required by mandatory law or applicable open-source software terms, the client is not permitted to:

• Copy the software beyond the extent necessary for contractual use, whether in whole or in part;
• Modify, correct, adapt, translate, improve, or otherwise create derivative developments of the software;
• Rent, lend, sell, license, transfer, or otherwise make the software accessible to third parties;
• Reverse engineer, decompile, disassemble, or otherwise attempt to decipher the source code of the software, whether in whole or in part;
• Circumvent or violate security measures or protection mechanisms contained in or used for the software;
• Take actions that are likely to cause damage to the software or the contractor’s servers;
• Remove, delete, erase, alter, conceal, translate, combine, supplement, or otherwise modify trademarks, documentation, warranties, disclaimers, or other rights, such as intellectual property, symbols, notices, markings, or serial numbers related to the software or documentation;
• Use the software in a manner that violates applicable laws and/or the rights of third parties;
• Use the software for benchmarking or competitive analysis of the software, for the development, use, or provision of competing software products or services, or for any other purpose detrimental to the contractor; and/or
• Use the software for or in connection with the planning, construction, maintenance, operation, or use of hazardous environments, systems, or applications, or other safety-critical applications, or otherwise use the software in a way that could result in physical injury or significant property damage.

3.10. Upon request, the client will enable the contractor to verify the proper use of the software, particularly to ascertain whether the client uses the software qualitatively and quantitatively within the scope of the acquired usage rights. For this purpose, the client will provide information, grant access to relevant documents and records, and allow the contractor or an expert appointed by the contractor and acceptable to the client to inspect the deployed hardware and software environment. If the inspection reveals a non-trivial exceedance of the acquired usage rights or another non-trivial non-contractual use, the client bears the costs of the inspection; otherwise, the contractor bears the costs. If the client uses the software beyond the scope of the acquired usage rights, either qualitatively (in terms of the permitted type of use) or quantitatively (in terms of the agreed licensing model), they must promptly acquire the necessary usage rights for the permitted use.

4. Client Obligations

4.1. The client will support the contractor in providing the contracted services to a reasonable extent. The client must proactively provide all required cooperation, information, data, files, materials necessary for the fulfillment of the contractor’s contractual obligations in advance. Should the client fail to cooperate sufficiently or cause delays, the contractor is not obligated to fulfill the contractual obligations for as long as and to the extent that they are hindered from doing so due to insufficient or delayed cooperation by the client. The contractor must inform the client of their insufficient or untimely cooperation and set a reasonable deadline for remedial action. If the client still fails to fulfill their cooperation obligations, any unavoidable cost increases, additional expenses (e.g., overtime, cancellation fees, travel costs), and schedule delays resulting therefrom are borne by the client. After the unsuccessful expiration of the grace period, the affected software or service is deemed to have been provided or performed.

4.2. The client is responsible for: (i) Adequate security processes, tools, and controls for systems and networks interacting with the software; (ii) Maintaining alternative processes in the event of the software’s unavailability; (iii) Determining whether the technical and organizational data protection and security measures provided by the contractor meet the client’s specific requirements; (iv) Providing appropriate internal training for users and internal technical support; and (v) Ensuring the proper backup of all programs and data on their system environment and all data and work results transferred to or created with the software from the start of using the software and at regular intervals thereafter.

5. Warranty

5.1. The software is provided by the contractor free of defects and essentially corresponds to the specifications mentioned in the documentation when used as intended.

5.2. The granting of the agreed usage rights to the client is not opposed by any third-party rights.

5.3. Technical data, specifications, and performance figures in public statements, especially in advertising materials, are not descriptions of condition.

5.4. In the case of defects, the client’s claims for defects are initially limited to subsequent performance. The client will report any defects to the contractor in writing, describing the defect and requesting its rectification. In the case of proven defects, the contractor will provide warranty through subsequent performance by either making the software available again in a defect-free state or rectifying the defect.

5.5. If subsequent performance fails after two attempts, the client may withdraw from the respective individual contract or reduce the compensation appropriately. The contractor will compensate for damages or reimbursement of futile expenses due to a defect within the limits of liability set forth in these APARAVI Platform Terms.

6. Provision of Software

6.1. The APARAVI Platform is made available for download.

6.2. The information required for installation, such as supported operating systems, databases, and data sources, can be found at the Aparavi Academy: Training and Tutorials. Access is granted after signing the NDA, prior to installation.

6.3. Unless otherwise agreed, the software is not subject to a separate acceptance process by the client but is considered accepted upon provision. The software and other work results are deemed delivered once made available to the client. If acceptance is contractually agreed upon and the client has not adhered to the time or test plan for acceptance, or if no such test plan or time limit for testing and acceptance exists, the software is considered accepted ten business days after being made available.

6.4. The contractor is entitled to engage subcontractors or other agents (collectively referred to as „subcontractors“) to fulfill the contractual obligations. The contractor will ensure that subcontractors are bound by confidentiality and data protection obligations in accordance with these APARAVI Platform Terms. The engagement of subcontractors does not affect the contractor’s contractual obligations to the client. The contractor is liable for any poor performance by a subcontractor as if it were their own fault.

7. Payment Terms

Unless otherwise agreed, the software is billed annually in advance. The client must pay invoices within 30 days of the invoice date without discount or other deductions. Unless otherwise agreed, the inclusion of a purchase order number on the invoice is not a prerequisite for the payment obligation. In the event of late payment, statutory interest on arrears will apply.

The stated prices do not include value-added tax or other taxes. These will be billed to the client separately if applicable.

8. Limitation of Liability

8.1. For simple negligence, the contractor is liable, both for their own behavior and for attributed behavior, only if essential contractual obligations (cardinal obligations) are breached. In this case, liability is limited to the typical and foreseeable damage. Essential contractual obligations are those whose breach jeopardizes the achievement of the contract’s purpose, whose fulfillment is essential for the proper execution of the contract, and on whose compliance the client regularly relies.

8.2. For the aforementioned cases of limited liability, this is additionally capped per damage event to the amount of the annual compensation payable by the client (the compensation paid or payable by the client in the last 12 months before the occurrence of the damage, or, if the contract has been in effect for less than 12 months at the time of the damage, the average monthly compensation x12) and to twice the annual compensation payable by the client for all damage events occurring within one contract year.

8.3. For indirect and consequential damages, as well as for lost profits, additional personnel costs, futile expenses, and missed savings, etc., the contractor is liable only in cases of intent and gross negligence.

8.4. The limitations of liability do not apply to claims due to intent and gross negligence, personal injury, fraudulent misrepresentation, insofar as the Product Liability Act applies, and for damages falling within the scope of protection of a guarantee, quality assurance, or durability guarantee given by the contractor unless the respective guarantee agreement provides otherwise.

8.5. If the client breaches their obligation to properly back up data, the contractor’s liability for data loss is limited to the extent of damages that would have occurred even with proper and regular data backup by the client.

9. Confidentiality

9.1. Each party undertakes to use all information received in the context of the contractual cooperation that is (a) marked as „confidential“ or „secret“ or with an equivalent notice or verbally designated as confidential; (b) considered confidential based on its content; or (c) derived from confidential information provided, exclusively for the purposes of the contractual cooperation, treat it confidentially, and protect it from unauthorized access by third parties. This confidentiality obligation applies to all persons entrusted with the execution of this contract.

9.2. Excluded from the confidentiality obligation are information that (a) is publicly accessible or becomes publicly accessible after the fact or was already known to the other party at the time of contract conclusion; (b) was independently and autonomously developed by the other party; (c) was disclosed to the other party by a third party not subject to confidentiality obligations; or (d) must be disclosed due to legal requirements or official or court order (in this case, the affected party must be promptly informed).

10. Data Protection

10.1. In the context of providing the software, no processing of personal data takes place by the contractor on behalf of and at the direction of the client. The software components Collector and Aggregator are installed on the client’s premises (behind the client’s firewall), and the contractor has no access to the processed information. The Presentation Layer, the cloud- and browser-based frontend or user interface, allows the client to view indexed search results in the Aggregator but does not provide access to file contents, only to the indexed search results. The contractor also has no access to the indexed search results.

10.2. The contractor processes the personal data of the client’s contact persons (name, first name, contact details) for the execution of the contract (Art. 6 para. 1 lit. b) GDPR). For information regarding the corresponding data subject rights and other informational obligations, please refer to the privacy policy on the contractor’s website.

11. Term

11.1. The initial term of each Order Form is agreed upon in the respective Order Form. The term of an Order Form extends by the duration of the initial term unless the respective Order Form is terminated in writing with a notice period of two calendar months before the end of the respective term.

11.2. Order Forms may be terminated by either party at any time in the event of a material breach of contract by the other party if the breach is not remedied within 30 days. This period begins upon receipt of the written notice of the material breach.

11.3. Either party may terminate an Order Form immediately if the other party goes into liquidation or if an insolvency application is filed and not withdrawn within four weeks of filing.

12. General Provisions

12.1. This contract is governed by German law. In the event of disputes arising from this contract, the parties agree to first seek an amicable resolution. If this is not possible, the parties hereby agree on Munich as the general jurisdiction.

12.2. Should a provision of this partner agreement be deemed invalid or unenforceable by a competent court or administrative authority, this does not affect the remaining provisions of this partner agreement, which remain fully in force and effective.

12.3. The contractor has the right to publicly state that the client uses their software or is their customer and to use the client’s name and logo for this purpose in their marketing materials, including on their website and/or social media pages. Any other use of the client’s name or logo requires the prior consent of the client.

12.4. All communications under this contract require written form and become effective upon first delivery.

12.5. The contractor may make changes to these APARAVI Platform Terms if such changes become necessary due to changed circumstances, for example, significant changes in legislation or case law, the relevant market and business environment, or due to technical developments, and are reasonable for the client. The contractor will inform the client of such changes in electronic form at least one month before they come into effect. The client is entitled to object to such changes within 14 days of receiving the change notification. In the event of an objection by the client, the contractor has the right to terminate the contractual relationship extraordinarily without observing a notice period. If the client does not object, their consent is deemed granted after the expiry of the aforementioned deadlines. The contractor will explicitly inform the client of the duration of the objection period and the significance of its expiry when announcing the changes to the APARAVI Platform Terms.