General Terms and Conditions

1. Scope and order of precedence

(1) These General Terms and Conditions (hereinafter “GTC”) apply to all contracts between Datargo GmbH, Frankfurt am Main (hereinafter “Datargo”), and its business customers (hereinafter “Customer”) concerning the provision and use of the modules Datargo Monitor, Datargo CRM, Datargo ID, Datargo ERP and NextPKI, as well as the bundled offering Datargo One (individually and collectively hereinafter “Services”).

(2) Datargo’s offerings are directed exclusively at entrepreneurs within the meaning of section 14 BGB (German Civil Code), at legal persons under public law and at special funds under public law. The conclusion of a contract with consumers within the meaning of section 13 BGB is excluded. The Customer warrants that it is concluding the contract in the exercise of its commercial or independent professional activity.

(3) These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Customer shall become part of the contract only if and to the extent that Datargo has expressly consented to their application in text form. This requirement of consent applies even where Datargo, with knowledge of conflicting terms and conditions of the Customer, performs the Services without reservation.

(4) These GTC also apply to all future transactions with the Customer, without any need for renewed reference, insofar as the transactions are of a related nature.

(5) Insofar as further documents are agreed between the parties in addition to these GTC, the order of precedence set out in Section 20 shall apply in the event of conflicts.

(6) Distinction from Datargo Licensing. These GTC govern exclusively the Services under paragraph 1 (the Datargo platform, software as a service, available solely to entrepreneurs pursuant to paragraph 2). Module-specific particulars, for example for Datargo Monitor and Datargo CRM, are governed by the respective Special Conditions within the same contract. The direct software business of Datargo GmbH (Datargo Licensing, in particular the provision of software products such as sqlclient and FoldMail, available at license.datargo.com) is not the subject of these GTC; it is governed exclusively by the separate general terms and conditions for Datargo Licensing. Contracts for such services are legally independent; their terms do not form part of this contract, and these GTC do not apply to those services, and vice versa.

2. Definitions

For the purposes of these GTC, the following terms have the meanings set out below:

3. Conclusion of contract, offer and order

(1) The presentation of the Services, tariffs and prices on Datargo’s websites, in brochures or in other publications does not constitute a binding offer, but rather an invitation to the Customer to submit an offer.

(2) The contract is concluded by (a) Datargo’s acceptance of the Customer’s order in text form or by the activation of the ordered Services, (b) the Customer’s acceptance of an offer individually submitted by Datargo within the period stated therein, or (c) in the case of the free trial phase, by the provision of access following registration.

(3) Only persons who are authorised to do so are entitled to submit orders and declarations on behalf of the Customer. Datargo may rely on the existence of corresponding authority of representation of the persons acting for the Customer.

(4) Unless expressly designated otherwise, offers from Datargo are subject to change and valid for the period stated in the offer, otherwise for 30 days from receipt.

4. Subject matter of the Services (Software-as-a-Service)

(1) Datargo provides the Customer with the Services designated in the respective individual contract and the associated service description for use as Software-as-a-Service over the internet for the duration of the contract. The Services are EU-hosted and operated from a data centre in Frankfurt am Main. Region pinning and further operating options may be agreed via Datargo One.

(2) What is owed is the provision of the Services at the handover point in their respective current version in accordance with the service description and the agreed service levels. The telecommunications connection required for use between the handover point and the Customer’s IT infrastructure is not the subject of this contract.

(3) Unless expressly agreed otherwise, the provision of the program code, an installation at the Customer’s premises or the granting of rights to the source code are not owed.

(4) The specific characteristics of the Services are determined conclusively by the service description, the chosen tariff and any individual agreements. Public statements, recommendations or advertising do not constitute a contractual agreement on characteristics or a guarantee.

5. Changes to the Services, further development, updates and beta functions

(1) Datargo continuously develops the Services further and provides updates, patches and new functions. Datargo is entitled to change the Services, to develop them further or to adapt individual functions, insofar as this is necessary or appropriate for an objective reason, in particular to safeguard operational security, to remedy defects, to adapt to the state of the art or to changed legal or regulatory requirements, and insofar as the change does not significantly restrict the contractually owed scope of Services and is reasonable for the Customer.

(2) If a change impairs the agreed core functional scope of a module to the disadvantage of the Customer to more than an insignificant extent, Datargo will announce this in text form with reasonable notice, as a rule at least 30 days in advance. In this case, the Customer has an extraordinary right of termination for the affected module taking effect when the change becomes effective.

(3) Datargo may designate individual functions as beta, preview or test functions and provide them for a limited or unlimited period. Beta and test functions are made available “as seen”, without any availability commitment, without liability for defects and without service levels. They may not be used in business-critical or productive processes without the Customer’s own safeguards. Datargo may change, restrict or discontinue beta and test functions at any time. Mandatory liability under Section 9 paragraph 1 remains unaffected.

6. Availability and rights in respect of defects

(1) Datargo guarantees an availability of the Services of 99.5 percent per calendar month, measured at the handover point in accordance with the measurement method laid down in the Service Level Agreement . Planned maintenance announced at least 48 hours in advance, as well as periods of unavailability for reasons for which Datargo is not responsible, are not taken into account in the calculation. The specific service levels per tariff and the details of measurement, maintenance and service credits are set out in the Service Level Agreement .

(2) The right to reduction of remuneration (section 536 BGB) is excluded. It is replaced by the service credits of the Service Level Agreement, which constitute a conclusive compensation for pure shortfalls in availability. The Customer’s claim to reclaim remuneration paid in advance for periods in which the affected Service was entirely unusable remains unaffected.

(3) Strict guarantee liability for initial defects (section 536a paragraph 1 alternative 1 BGB) is excluded. Datargo’s liability for the remedying of defects in other respects, as well as liability under Section 9, remains unaffected.

(4) The Customer reports defects and disruptions without undue delay after becoming aware of them, in text form and with a description sufficient for their traceability, and supports Datargo to a reasonable extent in narrowing them down.

7. Rights of use and scope of licence

(1) For the duration of the contract, Datargo grants the Customer the non-exclusive, non-transferable and non-sublicensable right to use the Services within the contractually agreed scope for its own internal business purposes. The authorisation to use is limited to the agreed number of Users, tenants or other units of use.

(2) Insofar as the remuneration is tied to named users, use is permitted only by the respective named natural person. Passing on access credentials to changing persons (concurrent use beyond a named-user licence) is not permitted; the mutually agreed reassignment of a user seat upon the permanent departure of a User remains permitted.

(3) Use by affiliated companies of the Customer requires an express agreement. If group or affiliate use is agreed, the Customer warrants that the affiliated companies comply with the obligations under this contract; the Customer is liable for their conduct as for its own.

(4) The Customer is prohibited from (a) using the Services beyond the agreed scope or making them available to third parties for use, whether for consideration or free of charge, renting them out or operating them as a service provider for third parties (no hosting, outsourcing or application service providing for the benefit of third parties), unless expressly agreed, (b) reverse-engineering, decompiling or disassembling the software, insofar as this is not mandatorily permitted under section 69e UrhG (German Copyright Act), (c) removing or altering proprietary notices, markings or trademarks, or (d) circumventing technical protection and control mechanisms.

(5) All rights in the Services, in particular copyrights, trademark, patent and other industrial property rights, as well as rights in the underlying technology, the know-how and the content of Datargo, remain with Datargo or its licensors. Datargo acquires no rights in the Customer data beyond those required for the performance of the contract.

8. Customer’s duties to cooperate

(1) The Customer provides the system requirements necessary for the use of the Services (in particular suitable end devices, operating systems, browsers and internet access) and keeps them operational.

(2) The Customer carries out the configuration incumbent upon it properly and completely, keeps its contact and master data up to date, designates suitable contact persons and protects its access credentials against access by third parties. It activates the security mechanisms offered by Datargo insofar as this is reasonable for it.

(3) The Customer ensures that the Customer data it submits and its use of the Services are free of third-party rights and do not infringe applicable law.

(4) Insofar as the Customer fails to fulfil the duties to cooperate incumbent upon it, or fails to do so in time or properly, Datargo is to that extent released from its obligation to perform. Impairments, delays and additional expenses attributable to the Customer are not borne by Datargo. A breach of duties to cooperate is to be taken into account in the context of contributory fault (section 254 BGB).

9. Liability

(1) Datargo is liable without limitation for damage resulting from intent and gross negligence, for damage resulting from injury to life, body or health, in accordance with the provisions of the Product Liability Act (Produkthaftungsgesetz), in the case of fraudulent concealment of a defect, as well as to the extent of a guarantee expressly assumed by Datargo.

(2) In the case of a slightly negligent breach of a material contractual obligation, Datargo’s liability is limited to the foreseeable damage typical for the contract at the time of conclusion of the contract. Material contractual obligations (cardinal obligations) are those obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the Customer may regularly rely.

(3) In all other respects, Datargo’s liability in the case of slight negligence is excluded. In particular, compensation for indirect damage, lost profit, failed savings, and damage resulting from business interruption is excluded.

(4) Insofar as liability is limited in accordance with paragraph 2, it is limited in amount to EUR 50,000 per case of damage, but at least to the foreseeable damage typical for the contract. The aggregate maximum liability amount for all cases of damage within a contract year is twice the aforementioned maximum amount, i.e. EUR 100,000 per contract year. This limitation by amount does not apply to liability under paragraph 1. The maximum liability amount may be agreed individually with major customers; any such individual agreement takes precedence over this clause.

(5) For the loss of data, Datargo is liable, subject to paragraphs 1 to 4, only to the extent of the typical restoration effort that would have been incurred if the Customer had backed up its data properly and regularly in accordance with Section 10.

(6) The foregoing limitations and exclusions of liability also apply to the personal liability of the corporate bodies, legal representatives, employees and vicarious agents of Datargo. The foregoing provisions do not entail any change to the statutory burden of proof to the disadvantage of the Customer.

(7) This liability provision applies as a core provision for the entire contractual relationship. The module-specific terms, the Service Level Agreement and any supplementary agreements refer to this Section and do not establish any independent or extended liability.

10. Data backup

(1) The Customer is responsible for the regular backup of its data on its own responsibility. It must maintain its own backup copies to an extent that enables restoration in the event of data loss with reasonable effort. Insofar as Datargo provides export functions, the Customer may use these for this purpose.

(2) Backups maintained by Datargo within the agreed scope of Services do not release the Customer from its own backup responsibility. Datargo’s liability for data loss is governed by Section 9 paragraph 5.

11. Remuneration, invoicing, payment and price adjustment

(1) The net list prices published for the chosen tariff or individually agreed at the time of conclusion of the contract apply, plus the applicable statutory value-added tax. All prices are understood as net prices in commercial dealings between entrepreneurs.

(2) Invoicing takes place via Datargo ERP; invoices are issued as electronic invoices in accordance with EN 16931. Unless otherwise agreed, the remuneration is invoiced in advance for the respective billing period.

(3) Invoice amounts are due for payment without deduction within 14 days from receipt of the invoice. If the Customer falls into default of payment, Datargo is entitled to demand default interest pursuant to section 288 paragraph 2 BGB and the flat-rate amount pursuant to section 288 paragraph 5 BGB. The assertion of further default damage remains unaffected.

(4) In the event of significant default of payment, Datargo is entitled, after prior notice and the setting of a reasonable period, to temporarily suspend the affected Services. The Customer’s payment obligation remains in place for the duration of a justified suspension.

(5) Datargo is entitled to adjust the remuneration for contracts with an indefinite term or in the case of automatic renewal once per contract year at its reasonable discretion (section 315 BGB) in order to reflect changes in personnel, energy, hosting and third-party licence costs as well as statutory levies. If these costs fall, Datargo passes the reduction on to the Customer according to the same standards and in the same procedure; the adjustment is limited to offsetting the aforementioned cost changes and does not serve to increase the profit margin. Datargo will announce an intended price adjustment in text form at least 60 days before it takes effect. If the adjustment exceeds 5 percent compared with the price last applicable, the Customer has a special right of termination taking effect when the adjustment takes effect; if it does not exercise this right in time, the adjustment is deemed accepted. Datargo will inform the Customer in the announcement, separately and in a prominent form, of the significance of its silence (deemed acceptance) and of the special right of termination. The mere passing on of a changed value-added tax remains unaffected.

12. Data protection and data processing

(1) The parties comply with the applicable data protection provisions, in particular the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (Bundesdatenschutzgesetz).

(2) Insofar as Datargo processes personal data on behalf of the Customer in the context of providing the Services, the Customer is the controller and Datargo is the processor. The details, in particular regarding instructions, technical and organisational measures, sub-processors, data subject rights and notification obligations, are governed by the separately concluded data processing agreement pursuant to Art. 28 GDPR. In data protection matters, the data processing agreement takes precedence over these GTC in the event of conflicts.

(3) The Customer is responsible for the lawfulness of the processing of the data it submits, in particular for the existence of a legal basis and the fulfilment of the information obligations towards data subjects.

13. Confidentiality

(1) The parties undertake to keep secret all information of the respective other party that becomes known to them in connection with the contract and that is marked as confidential or that is confidential by its nature (in particular trade and business secrets within the meaning of the Trade Secrets Act (Geschäftsgeheimnisgesetz), technical information, conditions and Customer data), to use it exclusively for the purposes of performing the contract and not to pass it on to third parties.

(2) The obligation does not apply to information that (a) was already lawfully known to the receiving party upon receipt, (b) is or becomes generally known without a breach of this agreement, (c) was lawfully made available to the receiving party by a third party entitled to disclose it, or (d) must be disclosed on the basis of a statutory, official or judicial order; in the last-mentioned case, the disclosing party informs the other party in advance, insofar as legally permissible.

(3) The parties may disclose confidential information to their employees, affiliated companies and agents only insofar as they require it for the performance of the contract and are subject to a corresponding confidentiality obligation.

(4) The confidentiality obligations apply for the duration of the contract and continue to apply for three years after its termination; for trade secrets, they apply for as long as these are trade secrets.

14. Indemnification against intellectual property rights claims by Datargo

(1) Datargo indemnifies the Customer against justified claims of third parties that they assert against the Customer on the grounds that the contractual use of the Services infringes copyrights, patents, trademarks or other industrial property rights existing in the European Union or trade secrets of third parties. To that extent, Datargo also assumes the necessary and reasonable costs of the Customer’s legal defence.

(2) The prerequisite for indemnification is that the Customer informs Datargo without undue delay in text form of an asserted or threatened claim, makes no acknowledgements or settlements without Datargo’s prior consent, leaves to Datargo the sole conduct of the out-of-court and judicial dispute and any settlement negotiations, and supports Datargo to the necessary and reasonable extent. If Datargo does not assume the defence, the Customer is entitled to defend itself appropriately at its own expense.

(3) If an infringement of intellectual property rights exists or, in Datargo’s assessment, is to be feared, Datargo is entitled, at its own option, to (a) procure for the Customer a right to continue using the affected Service, (b) modify or replace the affected Service in a reasonable manner so that the infringement of intellectual property rights ceases and the contractually owed functional scope is substantially maintained, or (c), where the aforementioned measures are possible only with disproportionate effort, terminate the affected part of the contract against reimbursement of the remuneration paid in advance for the period not used.

(4) Claims of the Customer under this Section are excluded insofar as the infringement of intellectual property rights is based on (a) a use by the Customer that deviates from the contract or goes beyond the agreed scope, (b) a modification of the Services made by or on behalf of the Customer, (c) a combination of the Services with products, data or services not provided by Datargo, insofar as the infringement results precisely from that combination, or (d) the use of content or specifications provided by the Customer. To the extent of contributory fault on the part of the Customer (section 254 BGB), the indemnification is reduced accordingly.

(5) The foregoing provision is conclusive for the Customer’s claims due to an infringement of third-party intellectual property rights by the Services. Liability under Section 9 remains unaffected for the cases mentioned there.

15. Insurance

(1) During the term of the contract, Datargo maintains liability insurance including cyber risks with a coverage amount of EUR 50,000 per case of damage.

(2) Datargo demonstrates the existence of insurance cover at the Customer’s request by means of a confirmation from the insurer. The existence of insurance does not lead to an extension of the contractual liability under Section 9.

16. Audit and inspection rights

(1) Datargo primarily demonstrates compliance with the security and compliance requirements applicable to the Services by means of suitable evidence, in particular self-disclosures, certificates, attestations from recognised auditors and audit reports. Datargo makes these available to the Customer upon request to a reasonable extent.

(2) If the evidence presented in accordance with paragraph 1 is insufficient in an individual case, the Customer may, where there is legitimate cause, demand a more extensive audit. The Customer may carry out an on-site audit itself or have it carried out by an independent third party who is bound to secrecy and is not in competition with Datargo. On-site audits take place after reasonable advance notice, during normal business hours, without unreasonable impairment of Datargo’s business operations and while safeguarding the confidentiality interests of Datargo and third parties. The frequency is to be limited to the extent necessary.

(3) For customers subject to regulated requirements, in particular as financial entities within the meaning of Regulation (EU) 2022/2554 (DORA) or as important or essential entities within the meaning of Directive (EU) 2022/2555 (NIS2) and its national implementation, extended information, audit and access rights apply. These, including the rights of the competent supervisory and resolution authorities, the provisions on subcontractors, on support in the event of incidents and on exit strategies, are governed by the DORA Addendum , which takes precedence over this Section for the customers concerned.

(4) The costs of audits in accordance with paragraph 2 are borne by the Customer, insofar as the audit does not reveal a material defect for which Datargo is responsible; in that case, Datargo bears the reasonable costs attributable to it.

17. Sub-processors and subcontractors

(1) Datargo is entitled to use sub-processors and subcontractors for the provision of the Services. Datargo selects these carefully and remains responsible for their performance as for its own conduct.

(2) Insofar as the use of sub-processors concerns personal data, the prerequisites and the information and objection procedure are governed by the data processing agreement . For regulated customers, the provisions of the DORA Addendum on sub-outsourcing additionally apply.

18. Compliance, export and sanctions law, anti-corruption

(1) Both parties comply with the statutory provisions applicable to them, in particular the applicable provisions of foreign trade, export and sanctions law of the European Union, the Federal Republic of Germany and, where relevant, of other sovereign authorities.

(2) The Customer warrants that it will not use, pass on or make available the Services in breach of applicable export and sanctions law, in particular not to persons, entities or in countries against which relevant embargo or sanctions measures exist. Datargo is entitled to suspend or refuse the provision of Services insofar as mandatory export or sanctions law precludes it.

(3) The parties comply with the relevant provisions for combating corruption and bribery and refrain from any unlawful granting or acceptance of advantages in connection with this contract.

19. Term, termination and exit management

(1) The contract term is determined by the respective individual contract. Unless otherwise agreed, the tariffs may be terminated on a monthly basis. The free trial phase is 90 days and does not automatically extend into a paid tariff.

(2) If the contract comprises several modules, the Customer may, unless otherwise agreed, terminate individual modules separately without this affecting the continued existence of the contract in other respects.

(3) The right of both parties to extraordinary termination for good cause remains unaffected. Good cause exists for the Customer in particular in the case of repeated significant shortfalls below the agreed service levels in accordance with the Service Level Agreement , and for Datargo in particular in the case of significant default of payment by the Customer despite the setting of a deadline, or in the case of serious misuse of the Services.

(4) Any termination requires text form to be effective.

(5) After termination of the contract, Datargo makes the Customer’s data available to it for export for a period of 30 days in a common, structured and machine-readable format. At the Customer’s request, Datargo provides transition support for the migration against separate, reasonable remuneration. After expiry of the export period and any agreed transition period, Datargo deletes the Customer data or returns it and deletes existing copies, insofar as no statutory retention obligation precludes this. Data protection deletion and return obligations are governed by the data processing agreement ; for regulated customers, the exit provisions of the DORA Addendum additionally apply.

20. Module-specific terms, Service Level Agreement and order of precedence

(1) In addition to these GTC, the respective module-specific terms, the Service Level Agreement and, where relevant, the data processing agreement and the DORA Addendum apply. The following are authoritative in particular: the Special Terms for Datargo Monitor , the Special Terms for Datargo CRM , the Service Level Agreement , the data processing agreement and the DORA Addendum .

(2) In the event of conflicts between the documents mentioned, the following order of precedence applies:

(3) The liability governed in Section 9 applies uniformly and with precedence for all documents. Insofar as other documents make reference to liability, they serve clarification and do not establish any deviating liability.

21. Assignment, assumption of contract and change of control

(1) The Customer may transfer rights and obligations under this contract to a third party only with Datargo’s prior consent in text form. Consent may not be refused without an objective reason.

(2) Datargo is entitled to transfer the contract or individual rights and obligations arising from it to an affiliated company or, in the context of a disposal of the affected business division, to a legal successor. Datargo will inform the Customer of this in good time in text form. If the transfer adversely affects material interests of the Customer, the Customer has an extraordinary right of termination.

(3) Section 354a HGB (German Commercial Code) remains unaffected.

22. Reference customer naming

(1) Datargo may name the Customer as a reference customer, stating its name and company logo, in a factual, non-disparaging manner.

(2) The Customer may object to a reference naming at any time with effect for the future in text form. Datargo discontinues the naming within a reasonable period after an objection.

23. Force majeure

(1) Datargo is not liable for the non-performance or delayed performance of obligations insofar as this is due to circumstances of force majeure. Force majeure means unforeseeable and exceptional events for which Datargo is not responsible, in particular natural disasters, pandemics, war, terrorist acts, riots, sabotage, large-scale failures of the power or telecommunications supply, official measures and labour disputes over which Datargo has no influence.

(2) Datargo will inform the Customer without undue delay of the occurrence and the expected duration of such an event. For the duration of the force majeure, the affected performance obligations are suspended; remuneration already paid in advance for Services not rendered is reimbursed on a pro rata basis.

(3) If the event lasts longer than 60 days, both parties are entitled to terminate the affected contract with a period of 30 days in text form.

24. Limitation period

Claims of the Customer become time-barred one year from the statutory commencement of the limitation period. Excepted from this are claims arising from intent and gross negligence, claims for the breach of essential contractual obligations (cardinal obligations), claims arising from injury to life, body or health, claims under the Product Liability Act (Produkthaftungsgesetz), claims arising from fraudulent concealment of a defect, and claims arising from a guarantee assumed by Datargo; for these, the statutory limitation periods apply. In all other respects, the statutory limitation periods remain unaffected.

25. Set-off and right of retention

The Customer may set off only against such counterclaims as are undisputed or have been established with final and binding effect, or which stand in a legal relationship of reciprocity to the main claim. The Customer may assert a right of retention only on account of such counterclaims as are based on the same contractual relationship.

26. Final provisions

(1) The law of the Federal Republic of Germany applies, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(2) The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is, insofar as the Customer is a merchant, a legal person under public law or a special fund under public law, Frankfurt am Main. Datargo is also entitled to bring an action at the Customer’s general place of jurisdiction.

(3) Amendments and supplements to these GTC and to the contract require text form. This also applies to the cancellation of this text form requirement. Individual agreements between the parties take precedence over these GTC in any case; for the content of such agreements, a contract or Datargo’s confirmation in text form is authoritative.

(4) Should a provision of these GTC be or become wholly or partially invalid or unenforceable, the validity of the remaining provisions remains unaffected. The respective applicable statutory provision takes the place of the invalid or unenforceable provision.

Authoritative language version

This document is provided in German, English and French. The English and French versions are translations provided solely for convenience. The German version is authoritative and solely binding in the event of any dispute or any difference of interpretation or translation.