Terms and conditions

In the event of a conflict, the German version prevails.

General terms and conditions of Hawk IVO GmbH

Notice: These terms and conditions apply exclusively to business customers within the meaning of section 14 of the German Civil Code (BGB). Their use in relation to consumers is excluded. Effective date: January 1, 2025

1. Remuneration, payment, protection of performance and deadlines

1.1 Unless otherwise agreed, remuneration is calculated on a time and materials basis at the Provider’s generally applicable prices at the time the contract is concluded. All prices are net prices plus statutory VAT. The Provider may invoice monthly. Where services are charged on a time and materials basis, the Provider documents the nature and duration of the activities and submits this documentation with the invoice.

1.2 As a rule, all invoices must be paid without deduction no later than 14 calendar days after receipt.

1.3 The Customer may only offset or withhold payments on account of defects if the Customer actually has payment claims arising from material defects or defects of title in the service. In the case of other claims concerning defects, the Customer may only withhold payments in proportion to the defect. Clause 4.1 applies accordingly. The Customer has no right of retention if the claim concerning defects is time-barred. Otherwise, the Customer may only offset claims or exercise a right of retention in respect of claims that are undisputed or have been established by a final court decision.

1.4 The Provider retains ownership and the rights to be granted in respect of the services until the remuneration owed has been paid in full. Justified retentions on account of defects under clause 1.3 will be taken into account. The Provider also retains ownership until all claims arising from the business relationship with the Customer have been satisfied. The Provider may prohibit further use of the services while the Customer is in default of payment. The Provider may exercise this right only for a reasonable period, generally no longer than six months. This does not constitute withdrawal from the contract. Section 449(2) BGB remains unaffected. If the Customer or the Customer’s purchaser returns the services, their acceptance by the Provider does not constitute withdrawal unless the Provider has expressly declared withdrawal. The same applies to the Provider’s attachment of goods subject to retention of title or rights in such goods. The Customer may neither pledge nor assign as security goods or rights subject to retention. Resale as a reseller is permitted only in the ordinary course of business, provided that the relevant claims against the Customer’s purchasers have been effectively assigned to the Provider and the Customer transfers ownership to its purchaser subject to payment. By concluding this contract, the Customer assigns to the Provider, as security, its future claims arising from such sales. The Provider accepts this assignment. If the value of the Provider’s security rights exceeds the secured claims by more than 20%, the Provider will release a corresponding portion of the security rights at the Customer’s request.

1.5 Where rights of use relating to deliveries or services are permissibly transferred, the Customer must impose the contractually agreed restrictions on the recipient.

1.6 If the Customer fails to settle a due claim in full or in part on the contractual payment date, the Provider may revoke agreed payment terms for all claims. The Provider may also make further services conditional on advance payment or security in the form of a performance guarantee issued by a credit institution or credit insurer authorised in the European Union. The advance payment must cover the relevant billing period or, for one-off services, the remuneration for those services.

1.7 If the Customer is financially unable to fulfil its obligations to the Provider, the Provider may end existing contracts for reciprocal performance by withdrawal or, in the case of continuing obligations, by termination, including where the Customer files for insolvency. Section 321 BGB and section 112 of the German Insolvency Code (InsO) remain unaffected. The Customer must inform the Provider in writing at an early stage of any impending insolvency.

1.8 Binding performance dates should be agreed expressly and in documented form. An agreed binding performance date is subject to the Provider receiving the services of its upstream suppliers on time and in accordance with the contract.

2. Cooperation, duties to cooperate and confidentiality

2.1 The Customer and the Provider each appoint a responsible contact person. Unless otherwise agreed, communication takes place through these contact persons. The contact persons must promptly make all decisions relating to performance of the contract. Decisions must be documented in a binding manner.

2.2 The Customer must support the Provider to the extent necessary and establish all conditions within its operations that are required for proper performance of the order. In particular, the Customer will supply the necessary information and, where possible, enable remote access to the Customer’s system. If remote access is not possible for security or other reasons, the affected deadlines will be extended appropriately. The parties will agree an appropriate arrangement for any further consequences. The Customer must also ensure that suitably qualified personnel are available to support the Provider. If the contract provides for services at the Customer’s premises, the Customer will, at the Provider’s request, supply sufficient workstations and work equipment free of charge.

2.3 The Customer must promptly report defects in writing in a comprehensible and detailed form, providing all information useful for identifying and analysing them. This includes, in particular, the steps that led to the defect, how it manifested itself and its effects. Unless otherwise agreed, the forms and procedures supplied by the Provider must be used.

2.4 The parties undertake to keep confidential business and trade secrets and other information designated as confidential that becomes known in connection with performance of the contract. Such information may be disclosed to third parties only with the other party’s written consent. Unless otherwise agreed, this obligation ends five years after the information becomes known. For continuing obligations, however, it ends only when the contractual relationship ends. The parties will also impose these obligations on their employees and third parties engaged by them.

2.5 The parties acknowledge that electronic, unencrypted communication, for example by email, involves security risks. Claims arising from the absence of encryption may only be asserted if encryption was agreed in advance.

3. Disruptions to performance

3.1 If a disruption occurs for which the Provider is not responsible, for example a strike or lockout, all deadlines will be extended by the duration of the disruption, including an appropriate restart period where necessary. The affected party must promptly inform the other party of the cause and expected duration of the disruption.

3.2 If a disruption increases the effort required, the Provider may request remuneration for the additional effort, provided that the disruption is not attributable to the Customer or falls outside the Customer’s area of responsibility.

3.3 If the Customer is entitled to withdraw from the contract because of the Provider’s failure to perform properly and/or to claim damages in lieu of performance, the Customer must, at the Provider’s request, declare in writing within a reasonable period whether it is exercising these rights or wishes performance to continue. In the event of withdrawal, the Customer must reimburse the Provider proportionately for the value of the services used up to withdrawal, including any reduction in value resulting from their intended use. If the Provider is in delay in performing, its liability for each completed week of delay is limited to 0.5% of the price of the unusable portion of the services, up to a total of 5% of the remuneration for the services affected by the delay. For continuing obligations, this is calculated on the affected services for the full calendar year. Any percentage of the agreed remuneration specified when the contract was concluded applies in addition.

3.4 If performance is delayed, the Customer has a statutory right of withdrawal only where the Provider is responsible for the delay. If the Customer legitimately claims damages or reimbursement of expenses, it may claim 1% of the price of the unusable portion of the services for each completed week of delay, up to a total of 10% of that price. For continuing obligations, this is calculated on the affected services for the full calendar year. Any percentage of the agreed remuneration specified when the contract was concluded applies in addition.

4. Data protection

Where personal data is accessed, the Customer will conclude the necessary agreements with the Provider. In particular, the parties will conclude a data processing agreement under Article 28 GDPR setting out the Provider’s obligations as a processor. Hawk IVO GmbH may use the contact details supplied during registration to contact the licensee for information and support relating to the contractual services.

Hawk may contact the licensee for advertising purposes solely in relation to its own products or services similar to the contractual services, unless the licensee objects. Hawk will comply with the applicable legal requirements, in particular the GDPR and the German Act against Unfair Competition (UWG).

5. Miscellaneous

5.1 The Customer is responsible for complying with the import and export regulations required for performance of the contract, in particular those of the USA. For cross-border deliveries or services, the Customer bears any customs duties, fees and other charges and is responsible for completing statutory or administrative procedures, unless expressly agreed otherwise.

5.2 German law applies. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

5.3 The Provider supplies its services on the basis of these general terms and conditions. The Customer’s terms and conditions do not apply, even if the Provider has not expressly objected to them. Acceptance of the services by the Customer constitutes acceptance of these terms and conditions. Other terms are binding only if the Provider has accepted them in writing, in which case these general terms and conditions apply additionally.

5.4 Amendments and additions to this contract should generally be made in writing. Any stricter form required by law or contract for particular declarations, such as termination or withdrawal, remains unaffected. Otherwise, text form is sufficient for unilateral declarations of intent, in particular termination, unless these terms and conditions or the contract expressly provide otherwise.

5.5 For merchants, legal entities under public law and special funds under public law, the place of jurisdiction is the Provider’s registered office. The Provider may also bring proceedings at the Customer’s registered office.

5.6 General business hours: Monday to Friday, 09:00–17:00.

5.7 For readability, the simultaneous use of masculine and feminine forms is omitted. All references to persons apply equally to both genders.

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General terms and conditions of Hawk IVO GmbH for SaaS

Effective date: January 1, 2025

1. Services

1.1 The Provider makes the contractually agreed services, in particular access to the software, available within its area of control, from the data centre’s interface with the Internet. The scope, characteristics, intended use and conditions of use follow from the applicable service description and, additionally, the software’s operating instructions. Use of the app also requires the Customer to have IT infrastructure that supports the app’s functionality.

1.2 Additional services, such as the development of customer-specific solutions or necessary adaptations, require a separate contract.

1.3 The Provider may supply updated versions of the software. It will notify the Customer electronically and provide the relevant usage instructions.

2. Scope of use

2.1 The contractually agreed services may be used only by the Customer and exclusively for the purposes agreed in the contract. During the contract term, the Customer receives access to the services by telecommunications, for example via the Internet, and may use them through a browser or another suitable application, such as an app. No further rights, particularly in the software or infrastructure services, transfer to the Customer. Any further use requires the Provider’s prior written consent.

2.2 The Customer may not use the software beyond the agreed scope, allow third parties to use it or make it available to third parties. In particular, the Customer may not reproduce or sell the software or parts of it, provide them for temporary use, rent them out or lend them.

2.3 The Provider may take appropriate technical measures to protect against use contrary to the contract. These measures may impair contractual use of the services only to an insignificant extent.

2.4 If a user exceeds the agreed scope of use or an unauthorised transfer of use occurs, the Customer must promptly provide, at the Provider’s request, all information needed to assert claims, for example the user’s name and address.

2.5 The Provider may revoke the Customer’s access authorisation and/or terminate the contract if the Customer substantially exceeds the agreed scope of use or breaches measures protecting against unauthorised use. As a rule, the Customer will first be given a reasonable period to remedy the breach. Revocation of access authorisation alone does not constitute termination of the contract. Revocation may be maintained for no more than three months.

2.6 The Provider’s entitlement to remuneration for use beyond the agreed scope remains unaffected.

2.7 The Customer is entitled to restoration of access authorisation as soon as it demonstrates that it has ended the use contrary to the contract and prevented its recurrence.

3. Availability and defects in performance

3.1 Availability of the services is determined by the service description.

3.2 An insignificant reduction in the services’ suitability for contractual use does not give rise to claims for defects. The Provider’s strict liability for defects already present when the contract was concluded is excluded.

4. Data protection and data security

4.1 If the Provider accesses personal data of the Customer or from the Customer’s operations in the course of supplying the services, it does so exclusively as a processor under Article 28 GDPR and solely to perform the contract. The Provider follows the Customer’s instructions. The Customer bears any negative consequences of such instructions. The details are governed by a separate data processing agreement where required by law.

4.2 The parties agree that the Customer remains in control of the data, both under the contractual relationship and for data protection purposes. The Customer alone has authority to dispose of all data it uses. Neither the Provider nor its employees checks the legal admissibility of collecting, processing or using the data stored by the Customer. Responsibility rests solely with the Customer.

4.3 If the Customer collects, processes or uses personal data in connection with the contract, it warrants that it is entitled to do so under the applicable provisions, particularly data protection law, and indemnifies the Provider against third-party claims in the event of a breach.

4.4 The Provider ensures that Customer data is stored exclusively in the Federal Republic of Germany, a member state of the European Union or another contracting state to the Agreement on the European Economic Area.

4.5 The Provider may engage subcontractors but must impose on each subcontractor the obligations contained in this contract or these terms and conditions.

4.6 The Provider, or third parties engaged by it, takes the technical and organisational measures required to comply with statutory data protection provisions.

5. Customer obligations

5.1 The Customer must protect its assigned access authorisations and the associated identification and authentication information against access by third parties and must not disclose them to unauthorised persons.

5.2 The Customer indemnifies the Provider against all third-party claims arising from the Customer’s unlawful use of the services. If the Customer becomes aware that such a breach is imminent, it must promptly inform the Provider.

5.3 The Customer uses the facilities supplied by the Provider to make additional backups of its data within its own area of responsibility.

6. Use contrary to the contract and damages

6.1 For every unauthorised use of the services within the Customer’s area of responsibility, the Customer owes damages equal to the remuneration that would have been payable for contractual use during the minimum contract term. The Customer may show that it is not responsible for the unauthorised use or that substantially less damage occurred. The Provider reserves the right to claim further damages.

7. Incident management

7.1 The Provider receives the Customer’s incident reports, assigns them to the agreed incident categories under clause 7.3 and initiates appropriate analysis and remedial measures.

7.2 During its normal business hours, the Provider accepts incident reports, assigns them an identifier and confirms receipt on request.

7.3 Unless otherwise agreed, reports are assigned to the following categories after initial examination: a) Serious incident: use of the services, particularly the software, is impossible or possible only with substantial restrictions. b) Other incident: use of the services is impaired more than insignificantly without constituting a serious incident. c) Other report: reports that do not fall into either of those categories are treated as other reports and processed only in accordance with prior agreements.

7.4 For serious or other incidents, the Provider promptly initiates analysis and remedial measures. If the reported incident is not caused by a defect in the services, the Provider promptly informs the Customer. If there is a defect, the Provider promptly supplies any remedial measures, such as instructions or corrections. The Customer must implement these measures promptly and report any remaining incidents again.

8. Contract term and termination

8.1 Provision of the services begins when the access details are supplied and continues for at least one month or the agreed minimum term.

8.2 The contract may be terminated on one month’s notice or with the agreed notice period. If it is not terminated, it renews for one month at a time unless terminated with two weeks’ notice before the end of the relevant renewal period. The Customer may give notice by deleting its customer account in the system or in text form. The Provider gives notice in text form, for example by email to the main user’s address stored in the system.

8.3 The right to extraordinary termination for good cause remains unaffected.

8.4 The Customer is responsible for backing up its data, for example by downloading it, before the contract ends. On request, the Provider will assist for a fee. After the contract ends, access to the data is generally no longer possible because of the data processing arrangement.

9. Application of the general terms and conditions

9.1 The general terms and conditions of Hawk IVO GmbH apply additionally.

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