General Terms and Conditions
(Last update: 18 May 2010)
1. Subject matter of the General Terms and Conditions
ABAKUS Internet Marketing GmbH, Blumenauer Str. 1, D-30449 Hanover, Germany (hereinafter: ABAKUS) provides the customer, via a server infrastructure, with the software application SEO DIVER against a usage fee. The use of this application shall be subject to the following General Terms and Conditions (GTC).
2. Using SEO DIVER
- 2.1 For the term of this agreement, the customer is granted the non-exclusive, temporary right to use the functions associated with SEO DIVER under this agreement. To this end, the customer will receive the technical means and permission to access SEO DIVER via telecommunications. Access to SEO DIVER is realised via a closed and password-protected customer area on the ABAKUS internet platform at the domain www.seodiver.com.
- 2.2 To access SEO DIVER, the customer must provide information on his person as part of the registration process (such as identification or contact information). The customer shall declare that the information he enters when registering with ABAKUS will always be accurate, truthful and current. Upon completion of this agreement, ABAKUS shall provide the necessary access data which the customer can use to access the software. The customer undertakes to keep this access information secret and to ensure that it cannot be accessed by unauthorised third parties.
- 2.3 Unless otherwise agreed, the user authorisation shall be valid for one user (single user licence). If multiple users are to have access to SEO DIVER, a licence shall be obtained for each user. This also applies even if multiple users do not access the application simultaneously.
- 2.4 The customer is prohibited from transferring rights and obligations arising from this agreement to any third party, allowing any third party to use SEO DIVER, providing access thereto to any third party, reproducing parts of it, selling or permitting the temporary use thereof. Above all, the customer is not allowed to lease or lend it. For every case in which the customer culpably enables the use of SEO DIVER by a third party, the customer will be obliged to pay ABAKUS damages in the amount of the compensation that would have applied had an agreement with a minimum contract period of one (1) month for an individual user been concluded. The customer is entitled to demonstrate that no or substantially less damage has been caused. ABAKUS is entitled to claim further damages.
- 2.5 Keyword data obtained by means of SEO DIVER shall be passed on to a third party or published only with the written permission of ABAKUS.
- 2.6 The customer is not entitled to use SEO DIVER in a manner other than that permitted under the agreement, to use it improperly, to intervene in the services or to access the services in a manner other than by means of the user interfaces and/or interfaces provided by ABAKUS. Automated queries on the basis of scripts, etc. are prohibited.
- 2.7 The customer shall save ABAKUS harmless from all third party claims that arise due to the unlawful use of SEO DIVER by him or by others with his consent or that arise, in particular, from disputes involving data protection, copyright or other legal disputes associated with the use of SEO DIVER. If the customer learns of a risk of such violation or has indications for this, he shall inform ABAKUS thereof immediately.
- 2.8 In the event that the customer is in breach of these terms and conditions, ABAKUS is entitled to block further access to SEO DIVER. Access will be restored only when the breach of the substantial obligation concerned has been remedied permanently or when the risk of a repeat breach can be ruled out reliably by way of a reasonable cease-and-desist declaration, under penalty, by the customer to ABAKUS. In such event the customer shall continue to pay the current costs of his subscription.
3. Services, prices
The type and scope of the contractual services shall be governed by the SEO DIVER performance specifications. Prices and terms of payment shall be subject to the price list that was handed to the customer prior to entering into the agreement.
ABAKUS draws the customer’s attention to the fact that further costs may be caused by the telecommunications link from the data processing system of the customer to the ABAKUS server on the part of the telecommunications provider.
4. Default on payment
- 4.1 If the customer defaults on payment, ABAKUS is entitled to block further access to SEO DIVER. In such event the customer shall continue to pay the current costs of his subscription.
- 4.2 If the customer defaults on payment of the monthly subscription for two consecutive months during a period that extends over more than two months, with the amount in default being equivalent to the subscription fee for two months, ABAKUS is entitled to terminate the agreement without notice.
5. Term and termination of the agreement
- 5.1 This agreement is initially entered into for the selected minimum term (1, 3, 6 or 12 months). The agreement may be terminated by either party no sooner than the expiry of the minimum term with a notice period of one (1) day as of the expiry of the term. If the agreement is not terminated, its term shall be extended by a period equivalent to the minimum term previously selected and may then be terminated with a notice period of one (1) day as of the expiry of such term (also see price list SEO DIVER).
- 5.2 The right to terminate the agreement on substantial grounds remains intact.
- 5.3 Notice to terminate this agreement can simply be submitted online by clicking on top of SEO DIVER.
- 5.4 Upon termination of the agreement, the access data of the customer cease to be valid. The customer must delete all electronic copies of such access data.
- 6.1 The service obligation of ABAKUS shall be limited to an average availability of the SEO DIVER customer area of 95% (24 hours/365 days).
- 6.2 In view of current state-of-the-art technology, it is impossible to guarantee that data communications via the internet are always available or error-free. Therefore, the service obligation of ABAKUS shall be limited to keeping the software on a server where the customer can log in as well as ensuring the operation of such server and its connection via an internet interface. The path from his own data processing system to the internet interface of the server shall be the responsibility of the customer. Where matters are concerned that are beyond the control of ABAKUS, ABAKUS shall not be liable for the permanent and continuous availability of the service, nor for technical and electronic disturbances during communication events.
- 6.3 The production of backup copies of his own data shall be the responsibility of the customer.
- 6.4 ABAKUS shall be exempt from performing its service under this agreement if and when the non-performance of services is due to the occurrence of circumstances of force majeure following the conclusion of the agreement. Examples of force majeure include war, strikes, unrest, expropriation, substantial changes in law, storms, floods and other natural disasters.
- 6.5 If the customer learns of disturbances in accessing the customer platform, he shall inform ABAKUS thereof immediately so that ABAKUS can take remedial action if necessary.
- 6.6 If ABAKUS defaults on providing its service in an operational manner, its liability shall be subject to the provisions under Section 7. The customer shall be entitled to withdraw from the agreement only if ABAKUS fails to comply with a reasonable grace period set by the customer which shall be no shorter than two (2) weeks.
Liability of ABAKUS and its legal agents, employees or vicarious agents for damage in connection with the use of SEO DIVER shall be excluded, regardless of the legal basis.
Such limitation of liability does not apply where damage is caused by wilful intent or gross negligence. Furthermore, it shall not apply in cases of injury to life, limb or body. If ABAKUS is in breach of an obligation without the fulfilment of which the proper execution of the agreement would not be possible and on the fulfilment of which the customer may rely (a cardinal contractual obligation), any compensation shall be limited to the foreseeable, typical damage that may be caused. Liability on the basis of guarantees and under the provisions of the Product Liability Act shall also remain intact.
Setting off claims against counterclaims of the customer shall be permitted only where such counterclaims are uncontested or have been confirmed by declaratory judgment.
9. Data protection and privacy
ABAKUS takes the protection of personal data very seriously. Details on data protection and privacy issues can be found in the separate Data Protection and Privacy Statement.
10. Final provisions
- 10.1 ABAKUS draws the customer’s attention to the fact that ABAKUS employees are not authorised to enter into verbal agreements. Verbal agreements shall always require a written confirmation to enter into effect.
- 10.2 This agreement shall be subject exclusively to German law. The place of jurisdiction is Hanover, Germany.
- 10.3 Should any provision of this agreement be, in full or in part, invalid, ineffective or unenforceable or subsequently cease to be effective in law, the validity of the remaining provisions shall in no way be affected.