General Terms and Conditions of Business
(1) General information
These Terms and Conditions shall govern the terms and conditions of the contract between Resourcify GmbH and the Customer for the use of Resourcify and the provision of the web services provided with Resourcify (hereinafter referred to as „Services“).
The offer to use the Services is intended solely for business customers. Resourcify does not sell the Services to consumers within the meaning of § 13 BGB.
The purchase and use of Resourcify and the Services are governed solely by these Terms and Conditions. If the Customer uses terms and conditions that differ from these T&Cs, they shall not be accepted unless Resourcify has expressly agreed to their application in writing.
Registration is required to use the services. For this purpose, the customer must truthfully provide the following data:
– First name
– Last name
– Company name
– E-mail address
– Location(s) of the customer
Resourcify reserves the right to verify the data.
(3) Conclusion of contract
A contract is only concluded – unless otherwise expressly agreed individually – upon successful completion of the registration process by confirmation in text form (e.g. e-mail) to the customer.
There is no right to the conclusion of a contract. Resourcify is free to reject any offer by a user to conclude a contract without giving reasons.
(4) Services; Rights of use
Resourcify provides the Services to the Customer, subject to availability as set forth below, on a central data processing system or multiple data processing systems ([including plural] servers) for access by Resourcify and an Internet connection.
Resourcify will maintain storage space on the server during the term of the Agreement for the data generated by the Customer through use of the Services and/or necessary to use the Services (hereinafter referred to as „Customer Data“).
The Customer shall be entitled to use the Services by users of the Customer’s sites specified during registration. The transfer of the Services shall take place at the router exit of the data center in which the server is located. The customer is responsible for the Internet connection between the customer and the data center and the hardware and software required for this (e.g. PC, network connection). The customer is not permitted to use the service beyond this.
Resourcify shall provide the customer with the data required to access the server, in particular the agreed number of user names and user passwords. If the Customer purchases a paid service, Resourcify is entitled to withhold the transmission of user names and user passwords until the fees are paid in full. All user names and passwords must be changed immediately by the Customer to names and passwords known only to the Customer and, if applicable, to third parties authorized to use the Service. Resourcify is entitled to change the access data at any time with reasonable notice.
The Customer’s entitlement to use the Services begins when the Services are made available on the server and the access data are handed over to the Customer. It shall end at the earliest upon expiry of the agreed term and shall be automatically extended by terms of the same length if it is not terminated in writing at least one month before expiry of the respective term. The termination rights pursuant to Section 8.6, Section 9 and Section 12 of these GTC shall remain unaffected.
The Customer grants Resourcify the non-exclusive right to use Customer Data to perform Resourcify’s obligations under this Agreement, including, without limitation, to reproduce such data itself or through a subcontractor for the purpose of providing the Services on the server and to make it available to Authorized Users.
The Services are subject to continuous development. However, the basic functions will always remain the same. In addition, Resourcify may, at any time, add or remove any features that Resourcify deems no longer useful, taking into account the interests of the User.
Resourcify may, in its sole discretion, provide support and assistance to the Customer. Unless otherwise expressly agreed between the parties, Support is subject to the terms and conditions of these Terms and Conditions.
Resourcify may use subcontractors to perform the services under this Agreement.
(5) Availability of services
For the services, the availability of the service is 99.5% on a monthly average. Not included in the calculation of availability are the regular maintenance windows, which can last up to 2 hours each week and are usually carried out between 10 p.m. and 4 a.m. Central European Time. Furthermore, the calculation of availability does not include periods in which the Services are suspended due to circumstances for which the Customer is responsible, in particular due to a breach of duty pursuant to Section 7 of these GTC.
If the Services are used free of charge, however, Resourcify shall only owe an effort to make the Services available in accordance with the availability specified in clause 5.1. Resourcify shall not be liable for availability falling short of the availability specified in clause 5.1 in the event that the Services are used free of charge.
(6) Duties of the Customer
The customer will, if and to the extent that the technical possibility for this is mutually agreed upon, back up the customer data stored on the server regularly and in accordance with the significance of the data and create his own backup copies in order to enable reconstruction in case of loss of this data.
When using the Services, the Customer shall comply with the applicable data protection laws, in particular shall obtain the necessary consent of the respective person affected, insofar as he/she collects, processes or uses personal data when using the Services and no legal permission is granted.
The customer shall ensure that he/she observes (e.g. when transmitting third-party texts/data to the server) all third-party rights to the material used by him/her.
Before sending customer data to the server, the customer shall check it for viruses and use state-of-the-art virus protection programs.
The Customer shall not misuse the Service or allow it to be misused, in particular shall not use on the server any illegal or immoral content and/or such content which serves to incite the people, incites criminal offences or glorifies or trivializes violence, is sexually offensive or pornographic, is suitable to seriously endanger children or young people morally or impair their well-being or can damage the reputation of Resourcify and shall not refer to such content.
The Customer shall take reasonable precautions to prevent unauthorized access to the Services, in particular to protect the Services from unauthorized use. The Customer is obliged to keep user IDs and passwords secret and not to make them available to unauthorized third parties. The customer shall expressly work towards compliance with these terms and conditions vis-à-vis the users authorized to use the Services.
The Customer shall notify Resourcify immediately upon becoming aware of any infringement of any intellectual property right or copyright in the Services or the disclosure of user IDs or passwords to unauthorized users.
(7) Blocking of accesses
Resourcify may temporarily or permanently block access to the Services if there is concrete evidence that the Customer is in breach of these Terms and Conditions and/or applicable law, has violated or is in breach of the law, or if Resourcify has any other legitimate interest in blocking access. In deciding whether to suspend, Resourcify will give due consideration to the legitimate interests of the Customer.
(8) Prices and Payment; Free Basic Functions
Resourcify offers the services in different free and paid versions. The agreed prices can be found in the currently valid price and payment information, which the customer can view at www.mein-recycling.de. The prices quoted by Resourcify are exclusive of the applicable sales tax.
Resourcify offers the Customer the opportunity to use Resourcify with certain basic functions free of charge. Additional features such as statistics history, benchmarking, sensor integration and installation, etc. are available for purchase as an upsell in the app.
Payment is due in advance before the start of the agreed payment period.
Resourcify sends invoices electronically to the customer. If the customer chooses to send paper invoices instead of electronic invoices, the amount due per invoice shall be increased by a service fee of EUR 2.50 plus VAT at the statutory rate.
In the event of late payment, the customer shall pay interest on arrears at the statutory rate as well as the statutory flat-rate default charge of EUR 40.00. For back-postings of contractual direct debits for which the customer is responsible, costs of EUR 15.00 each will be charged; Resourcify is entitled to prove higher costs, the customer is entitled to prove lower costs. If the Customer is more than 14 days in arrears with payments for Services, Resourcify shall be entitled to block the Customer’s access to the Services until the Customer has fulfilled his due payment obligations. Resourcify reserves the right to assert further rights and claims due to the delay.
Resourcify shall be entitled to adjust the amount of the remuneration annually as appropriate. In making an adjustment, Resourcify shall take into account any changes in costs that have occurred in the meantime in the area of wages, salaries and costs of purchasing IT services. An adjustment shall be considered for the first time at the beginning of the second year (calculated from the beginning of the contract term) and shall take effect on the date indicated by Resourcify, but not earlier than one month after receipt of the notification of the adjustment by Resourcify to the Customer. In the event of an increase in the remuneration by more than 5% in each case, the Customer may terminate the contract by extraordinary notice. The termination must be declared in writing immediately after receipt of the notification of the increase with effect from the time the increase takes effect. Section 8.7 remains unaffected.
Resourcify shall also have the right and, in the event of changes in favor of the Customer, shall be obligated to adjust the compensation if and to the extent that the statutory VAT changes or taxes are introduced that relate to the Services and affect Resourcify.
(9) Termination; termination of contract
Subject to Section 8.6, the following provisions of this Section 9 and Section 12, termination before the end of the term specified in Section 4.5 is excluded. The statutory right of both parties to terminate without notice for good cause remains unaffected.
Subject to Section 112 of the German Insolvency Act, Resourcify may in particular terminate without notice for good cause if
in the case of monthly payment periods, the customer is in arrears with the payment of the remuneration or a significant part of the remuneration for two consecutive dates and a grace period of 14 days granted to the customer has expired without result. In the case of quarterly, half-yearly or annual payment periods of the remuneration, the provision shall apply accordingly if the Customer is in default with the payment of the remuneration in an amount equal to the pro-rata remuneration for two months in a period extending over more than one month,
a substantial deterioration of the financial circumstances of the customer occurs or threatens to occur and thereby the payment of the remuneration or the fulfillment of any other substantial liability to Resourcify is concretely endangered, in particular if the customer stops his payments not only temporarily, is insolvent or overindebted or if a compulsory execution is pursued against his assets,
the Customer fails to immediately cease a breach of material contractual obligations despite a warning from Resourcify and thereby materially infringes Resourcify’s rights. A warning notice is dispensable if it obviously does not promise success or if special circumstances exist which, after weighing the interests of both parties, justify immediate termination.
Resourcify’s right to terminate without notice for any other good cause shall remain unaffected.
Notice of termination must be given in writing.
In the event of premature termination of the Agreement due to termination without notice by Resourcify for reasons for which the Customer is responsible, Resourcify’s claim shall include, in addition to any gross remuneration and other amounts in arrears, the net remuneration still outstanding for the agreed term. The crediting of saved interest, other saved expenses and other advantages resulting from termination is governed by the statutory provisions. Resourcify’s claim becomes due upon receipt of the notice of termination. Further claims for damages by Resourcify remain unaffected.
Upon termination of an individual contract, Resourcify will make the customer data stored on the server available for download for 14 days from the date of termination of the contract. Upon expiration of this period, Resourcify will delete any customer data still stored on the server.
(10) Limitation of liability
Resourcify’s strict liability for damages for defects in Resourcify or the Services that existed at the time of the contract is excluded. Resourcify’s liability for damages, including liability for defects in Resourcify or the Services at the time of formation of the Agreement and for defects in Resourcify or the Services during the term of the Agreement, shall be governed by law as modified by the following provisions of this Section 10.
Resourcify shall have unlimited liability for damages caused intentionally or by gross negligence.
In the event of a slightly negligent breach of a major obligation or an accessory obligation, the breach of which endangers the achievement of the purpose of the contract or the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the Customer could rely (hereinafter referred to as „major accessory obligation“), Resourcify’s liability shall be limited to damages foreseeable at the time of conclusion of the contract and typical for the contract. Resourcify shall not be liable for slightly negligent breach of secondary obligations that are not essential secondary obligations.
The foregoing exclusions of liability in this Clause 10 shall not affect Resourcify’s liability for any guarantee of quality, for fraudulent intent, for damages arising from injury to life, body or health and for product defects in accordance with the provisions of the Product Liability Act. This does not imply a change in the burden of proof to the disadvantage of the customer.
To the extent that liability is excluded or limited under this clause 10, this shall also apply to the personal liability of Resourcify’s employees, staff, representatives and vicarious agents.
With the exception of claims in tort, Customer’s claims for damages, for which liability is limited under this clause 10, shall become statute-barred twelve months after the statutory limitation period begins.
(11) Data protection
Where the Customer instructs Resourcify to collect, process and use personal data or where Resourcify is given access to personal data used by the Customer in the performance of the contract, Resourcify undertakes to process and use such data only in accordance with the provisions of data protection law, in particular those of the Federal Data Protection Act and, from 25 May 2018, the Basic Data Protection Regulation.
Resourcify processes all personal data transmitted to the server by the Customer or entered by the Customer on the server on behalf of the Customer. The customer remains the responsible party for this data.
(12) Amendments to the GTC
Resourcify reserves the right to change these terms and conditions at any time with effect even within existing contractual relationships. Resourcify shall notify the Customer of such changes at least six weeks before the changes are scheduled to take effect. Unless the Customer objects within six weeks of receipt of the notification, the changes shall be deemed to have been agreed to be effective from the time the period expires. In the notice of change, Resourcify shall inform the Customer of his right to object and of the consequences of an objection. In the event of an objection, Resourcify shall have the right to terminate the contractual relationship with the Customer at the time the changes are scheduled to take effect.
(13) Final Provisions
Should individual provisions of the contract be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to replace the invalid provision by a valid provision which comes as close as possible to the economic purpose of the invalid provision. The same applies to any loopholes in the contract.
The exclusive place of jurisdiction for all disputes arising out of or in connection with the contract shall be Resourcify’s registered office, provided that the Customer is a merchant, a legal entity under public law or a special fund under public law or provided that the Customer has no general place of jurisdiction in Germany. Resourcify is also entitled to bring an action at the Customer’s place of business or any other competent court.
The law of the Federal Republic of Germany shall apply, with the exception of its regulations on the choice of law, which would lead to the application of a different legal system. The application of the CISG („UN Sales Convention“) is excluded.