For the purchase of software and financial information regarding the products
1.1 These General Terms and Conditions apply to the customer's order placed
with Lenz + Partner GmbH, Bronnerstraße 7, 44141 Dortmund (hereinafter "L+P"), entered in the commercial register of the local court of Dortmund under HRB 28470, legally represented by its managing director Dirk Albrecht;
- with regard to software, whereby the contract with regard to the software takes place between the customer and L+P, as well as
- with regard to financial information, whereby due to legal reasons pertinent to the stock exchange, the contract for the purchase of financial information takes place between the customer and vwd
Vereinigte Wirtschaftsdienste GmbH, Tilsiter Straße 1, 60487 Frankfurt am Main (hereinafter "vwd GmbH"), entered in the commercial register of the local court Frankfurt am Main under HRB 81011, legally represented by its managing director. With regard to the provision of financial information, L+P GmbH thus merely acts as an authorized representative of vwd GmbH.
1.2 Under the term "financial information" according to these General Terms and Conditions, the parties understand financial information and data, such as, for example, news, exchange rates (real-time, delayed, historical), prices (warrant and certificate prices), indices, etc. (hereinafter "financial information"). Financial information is offered to the customer in the form of a basic service as well as in the form of additional products.
1.3 Under the term "basic service" according to these General Terms and Conditions, the parties understand the basic financial information that is offered to the customer for the respective software product.
1.4 Under the term "additional products" according to these General Terms and Conditions, the parties understand financial information that is offered to the customer in addition to the basic service for the respective software product.
1.5 Under the term "software" according to these General Terms and Conditions, the parties understand the software products TAI-PAN Realtime, TAI-PAN End-of-day, b.i.s. Realtime as well as market maker End-of-day.
1.6 Any terms that the customer may have in place that deviate from the present terms, and any oral collateral agreements, shall only be valid if they are acknowledged in writing by L+P or vwd GmbH. The customer's acceptance of L+P's or vwd GmbH's contractual services is tantamount to the acceptance of these General Terms and Conditions.
2.1 The contracts with L+P and vwd GmbH are concluded when the customer's order is received by L+P, in compliance with the provisions in the cancellation policy.
2.2 If the software TAI-PAN End-of-day or market maker has been bought by the customer, the software is made available to the customer without temporal restrictions.
2.3 Contracts regarding software as well as regarding the basic service are generally concluded for an indefinite term and can, under observance of a period of 2 weeks, be terminated at the end of a calendar month. SIf a minimum contract term has been agreed for a contract, the contract is continually renewed for the duration of the minimum contract term chosen by the customer, unless the contract is terminated at the end of the minimum contract term or at the end of a subsequent contract term with a period of notice of 6 weeks. If the original minimum contract period was 24 months, the contract is continually extended by only 12 months each time. The start of the contract term is the first day of the month in which the order has taken place, regardless of the fact that the first calculation date may be later.
2.4 If the customer has ordered additional products to go with the basic service, the term of the purchase of these additional products conforms to the term of the obtained basic service. However, the customer is entitled to separately cancel additional products at the end of the corresponding valid contract term for the basic service, without the customer cancelling the basic service itself. Cancellation of the basic service simultaneously constitutes cancellation of the additional products.
2.5 Test versions end with the expiry of the testing time period, without the need for cancellation.
2.6 Unless otherwise agreed in the contract, after termination of the contract, the customer's right to use the software and the obtained financial information ends.
2.8 The customer must specify in his order whether he is a "retail investor" or a "professional". When he specifies this, he must sign the "Declaration of having retail investor characteristics" for the subscription to financial information from the Deutsche Börse AG as well as the "Wiener Börse Non-Professional User Statement" for the subscription to financial information from the Wiener Börse. If the signed declarations are not available, the customer is deemed "professional".
2.9 A cancellation or a revocation (according to the cancellation policy) with Lenz + Partner GmbH also simultaneously constitutes a cancellation or a revocation with vwd Vereinigte Wirtschaftsdienste GmbH. To this extent, it is sufficient that only one cancellation or one revocation is sent to Lenz + Partner GmbH.
3.1 Details on the extent of the financial information to be provided by vwd GmbH result from the order submitted as well as future orders submitted by the customer. For the provided financial information, vwd GmbH grants the customer a right of use limited to the duration of the concluded contract that allows the customer to use the financial information within the limits of the provided software.
3.2 The risk of partial or complete non-transmission of financial information is transferred to the customer as soon as the financial information has left vwd GmbH.
3.3 The customer is aware that vwd GmbH procures the financial information primarily from third parties, in particular stock exchanges, financial service providers, news agencies and other third-party suppliers. The customer is aware that vwd GmbH procures the financial information primarily from third parties, in particular stock exchanges, financial service providers, news agencies and other third-party suppliers. Therefore, vwd GmbH does not warrant or guarantee the correctness, completeness or topicality of the information procured from third parties, which the customer acknowledges. This exclusion is not valid if vwd has maliciously concealed a defect or has provided a warranty for the quality. Furthermore, the customer acknowledges that the aforementioned third parties are not vicarious agents of vwd GmbH.
3.4 In the event that information is provided to the customer that is subject to contracts that vwd GbmH has concluded with third parties (in particular with stock exchanges, financial service providers, news agencies and other third-party suppliers) and these third-party contracts are terminated or are not performed for any extended period of time either in whole or in part, for any reason whatsoever, vwd GmbH is entitled to remove such information from the scope of delivery. In such an event, the contract shall continue in force and the customer shall not be entitled to a right of termination on these grounds. vwd GmbH will replace the removed information with other information within a reasonable period of time. However, if the removal of the information from the scope of service should be unacceptable for the customer, then the customer is entitled to terminate the contract with effect at the point in time at which vwd GmbH removes the information from the scope of delivery.
3.5 The customer is only permitted to use the financial information within the scope of the software made available to him. The customer is not entitled to usage extending beyond this, such as
- forwarding the financial information to third parties against payment or without payment;
- disseminating the financial information by means of electronic data processing in a network;
- reprinting and/or modifying the financial information in terms of content and/or saving it;
- generally (e.g. via the internet) making the financial information available to third parties or inserting it in an intranet or extranet; and
- using the financial information to operate or develop a database.
3.6 The financial information is partially subject to copyright protection. If financial information is accompanied by a copyright notice, the customer is not entitled to remove this.
3.7 If the customer uses the financial information in such a manner that is not consistent with the usage agreed upon in the contract, the customer must release vwd GmbH, L+P and all of vwd GmbH's data providers from any claims asserted by third parties, as well as pay for all damages, expenditures, costs etc. that may arise for vwd GmbH, L+P, or its data providers in this context.
3.8 L+P and vwd GmbH do not provide any investment advisory services and do not make any investment recommendations. vwd GmbH points out that the future development of the price of a security or a derivative financial instrument cannot be predicted with absolute certainty. Therefore, if buy or sell signals or other trading indications are given by software, these are to be considered purely as suggestions. No liability is assumed for the correctness of these suggestions.
3.9 No financial services in the scope of the German Banking Act are provided by L+P or vwd GmbH, and no security services in the scope of the Securities Trading Act are provided by them either.
4.1 The customer is obliged to inspect the software made available to him for any deviations from the agreed quality or for other defects (hereinafter: defects) immediately after receiving it, whereby the customer is aware that given the state of technology, errors in the software and any other associated material cannot be completely excluded. The customer must notify L+P GmbH of any detected defects immediately in writing, providing a comprehensible account of the error symptoms. If the customer fails to inform L+P GmbH of the defects in a timely manner, the liability of L+P GmbH is excluded.
4.2 Modifications and extensions to the software or its maintenance, as well as its installation, software servicing and other support services are not part of the scope of service owed by L+P GmbH, unless explicitly otherwise agreed.
4.3 The software made available to the customer by L+P is protected by copyright. The customer is only entitled to the usage rights to the software explicitly granted within the context of the contract (incl. these General Terms and Conditions). All other rights, in particular commercial property rights and the copyright of the software, remain with L+P GmbH i.e. the owner of the property rights to the software.
4.4 The customer is entitled to a simple, non-sublicenseable right to use the software made available to him. When the software is loaned temporarily, the right of use is limited to the duration of the contract; when the software is made available for an unlimited duration (purchase), the right of use is unrestricted in terms of time.
4.5 Use is defined as running the software on one single computer workplace of the customer, unless explicitly otherwise agreed. A computer or laptop of a customer, which is used for running the software at home or on the go, is also considered a computer workplace. The use includes importing the software or the data into the working memory and/or into a read-only memory on the customer's computer.
4.6 The customer receives the right of use subject to the condition of timely and complete payment of the agreed fee. This means that until and as long as the customer has not paid the agreed fee in the proper manner, he may not use the software.
4.7 The customer is entitled to duplicate the software exclusively for backup purposes, in the context of the use as agreed upon in the contract.
4.8 The customer may transfer software that was made available to him permanently (through purchase) to a third party, if
- the third party declares his consent in writing with the agreed contract conditions and these General Terms and Conditions;
- the customer transfers all original data carriers on which the software is located, including documentation as well as all backup copies, to the third party, and proves this to L+P GmbH. If a transfer of backup copies is not possible, the customer must instead destroy the backup copies. After the transfer, the customer is no longer entitled to use the software.
4.9 The customer may not relinquish software that has been temporarily made available to him to any third party.
4.10 The source code is not part of the scope of delivery. The customer has no claim to it.
4.11 The customer is obliged to prevent any third parties from accessing the software and the financial information by taking appropriate precautions.
4.12 The statutory provisions are valid for warranty obligations of L+P, whereby in this respect, a customer claim for compensation due to defects is excluded. This exclusion is not valid if L+P has maliciously concealed the defect or has provided a warranty for the quality.
5.1 The customer must pay L+P GmbH the remuneration agreed for the software and the financial information, whereby vwd GmbH has authorized L+P GmbH to receive the remuneration to be paid by the customer for the financial information. The customer pays the agreed remuneration in advance, in accordance with the payment intervals selected by the customer in the contract (monthly, quarterly etc.).
5.2 Subject to the order form, the customer may be granted a discount for the contract duration selected by him. If, in the case of a minimum contract term of 24 months, the contract is subsequently extended by 12 months (see clause 2.4), for the extension period, the customer is granted the discount that is designated in the order form for a 12 month-term.
5.3 L+P GmbH and vwd GmbH are entitled to increase the remuneration to be paid by the customer once per calendar year; they may do so at the beginning of any month after issuing a written notice at least two months prior to that date. If such an increase exceeds the increase of the consumer price index (total index) for Germany (basis 2005 = 100) published by the German Federal Statistical Office by more than 2 percentage points (based on a comparison of the increase in rates in the month in which the increase is announced with the rates given in the same month of the preceding year), the customer is entitled to terminate the contract with effect from the point in time at which the increase comes into force, provided that the customer has given one month's notice.
5.4 Should the customer default on any payments, vwd GmbH is entitled to cease the services until the outstanding remuneration is paid. The customer's obligation to make payments for the period of the non-delivery remains untouched by this.
5.5 In the case of delayed payment, L+P and vwd GmbH are furthermore entitled to grant the customer a grace period of 14 days to settle the outstanding payment, threatening to terminate the contract should payment not be effected, and to terminate the contract without previous notice once this grace period expires without result. The right to claim interest on payments in arrears and to claim damages remains untouched in this case.
5.6 The customer is only allowed to set off claims that are legally established or uncontested or, if the customer is a businessman (§ 14 Civil Code), to exercise rights of retention regarding those claims.
6.1 In the case of simple negligence, L+P as well as vwd are liable for customer damages only in the case of a violation of cardinal obligations (essential contractual obligations, the fulfillment of which makes proper execution of the contract possible in the first place and the observance of which the contract partner may regularly rely upon).
6.2 If vwd GmbH and/or L+P are liable, they are only liable if the damages are foreseeable and typical for the contract.
6.3 The liability of vwd GmbH and L+P is limited to the amount of EUR 250,000.-- per claim.
6.4 The limitations of liability in the clauses 6.2 and 6.3 are not valid for the liability vis-à-vis a businessman in the context of the § 14 Civil Code if the damage is based on the fact that a legal representative or executive of vwd GmbH or L+P acted with willful intent or gross negligence or another employee or vicarious agent acted intentionally or violated a cardinal obligation with gross negligence. Vis-à-vis a consumer in the context of § 13 Civil Code, the limitations of liability in the clauses 6.2 and 6.3 are not valid in the case of willful intent or gross negligence by the legal representatives, executives or vicarious agents of vwd GmbH or L+P.
6.5 The exclusions of liability or limitations of liability listed in clauses 6.1 through 6.4 are not valid for damages due to the fact that representations made have not been adhered to, for liability according to product liability law, or for damages to life, body and health.
6.6 If the customer asserts claims directly against the legal representatives, employees or vicarious agents of vwd GmbH and/or L+P, the provisions in the clauses 6.1 through 6.5 apply to the benefit of these persons in equal measure, to the extent this is permissible under the law.
7.1 Trademarks, corporate logos, other characteristics or commercial protective rights, copyright notices, serial numbers as well as other markings serving to identify products by L+P as well as vwd GmbH or individual elements thereof may not be removed or altered. This applies equally to printouts that are made from this information.
7.2 L+P and vwd GmbH are entitled to refer to the cooperation with the customer within the course of ordinary business transactions, and to use the company name and the logo of the customer to this extent. However, this only applies as long as the customer does not raise any objections against the use of the company name and/or logo.
8.1 L+P, vwd GmbH and the customer will treat business and trade secrets that they have received from the other party, as well as contractual details of their cooperation, strictly confidentially.
8.2 L+P and vwd GmbH are freed from their contractual obligations and liability is excluded if they are impeded in the fulfillment of said obligations due to industrial dispute, administrative or judicial measures or other events of force majeure, and cannot be held responsible for this. Furthermore, in the aforementioned cases, L+P and vwd GmbH are entitled to immediate termination of the contract on exceptional grounds. L+P and vwd GmbH will inform the customer immediately that one of the aforementioned cases exists.
8.3 L+P and vwd GmbH are entitled to transfer individual or all rights and obligations in this contract to a third party without the consent of the customer.
8.4 Only German substantive law is applicable to the contractual relationship between L+P and vwd GmbH and the customer, excluding the provisions of private international law (Introductory Act to the German Civil Code). Moreover, the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11th April 1980 is also excluded.
8.5 Verbal collateral agreements, amendments and/or modifications to the contract must be made in writing. This applies equally to the renunciation of the written form requirement. Submission via telefax is deemed as compliance with the written form requirement.
8.6 If a provision of the contract or of these General Terms and Conditions is or becomes invalid, this does not affect the validity of the contract or of the remaining terms of these General Terms and Conditions. Moreover, the ineffective provision should be replaced by a legally effective regulation in the form of a supplementary interpretation of the contract that comes as close as possible to the recognizable economic purpose pursued by the contract parties. The same applies to the rectification of possible omissions in the contract as well as in the case that several provisions are or become invalid.
8.7 If the client is a businessman, a legal entity under public law or special fund under public law (§ 38 para. 1 Code of Civil Procedure) or if the customer has no place of general jurisdiction in Germany (§ 38 para. 2 Code of Civil Procedure), the sole place of jurisdiction for all disputes in connection with or arising from the contract or these General Terms and Conditions is vwd GmbH's headquarters. However, L+P and vwd GmbH reserve the right to bring an action against the client at the client's residence or headquarters as well.
8.8 Regarding vwd GmbH's suppliers of the financial information, the following is stated for the record:
a. The suppliers of the financial information assume no guarantee and no liability for the correctness of the content, completeness and topicality of the data and information delivered or made available by them, and by providing and/or delivering the data and information, they do not engage in investment advisory services, nor investment recommendations or similar services.
b. Additional provisions for Dow Jones:
- Dow Jones makes every effort to keep the Dow Jones content continuously available, but cannot guarantee the availability of the Dow Jones content at all times. This applies in particular for information and data that Dow Jones obtains from third parties. Dow Jones points out the fact that it has no influence on data traffic in the internet or in similar data lines, and therefore cannot be held responsible for these.
- For any liability that Dow Jones may possibly have vis-à-vis the customer, the provisions set out above in clauses 6.1 through 6.6 apply accordingly.
- Any further-reaching exclusions and limitations of liability as may be stipulated by the law remain unaffected by the provisions listed above.
- The provisions contained in clauses 6.1 through 6.6 apply in equal measure to the benefit of the data and information suppliers of Dow Jones, should any damage claims exist vis-a?-vis these suppliers.
c. Additional provisions for Dow Jones indices:
Furthermore, the customer consents - and this is a requirement for the (continued) receipt of the index data generated on the part of Dow Jones & Company Inc., or on the part of their associated companies or parties authorized by them - that he will not develop, create, distribute or manage or sponsor any financial instruments or investment products via his potentially existing stock exchange facilities, and also will not allow them to be traded (including but not limited to derivatives, structured products, investment funds, index funds traded on the stock exchange, or derivatives based on index funds traded on the stock exchange (e.g. options on index funds traded on the stock exchange or futures contracts on index funds traded on the stock exchange)) for which the price, the income and/or the development of these instruments or products, based on any index published by Dow Jones, or based on a financial security or investment product associated with a Dow Jones index or with an index created on behalf of Dow Jones (e.g. an index fund traded on the stock exchange), is established, is associated with these indices or is intended to emulate these. The above applies insofar as no separate written contract has been concluded with Dow Jones for this purpose.
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Phone: +49 231 9153-300