Online Services on the “AVERBIS Patent Monitor” Platform
The following General Terms and Conditions of Averbis GmbH, Salzstr. 15, D – 79098 Freiburg, Germany, (hereinafter referred to as “AVERBIS”) apply to the use of the online services on the “AVERBIS Patent Monitor” platform (hereinafter referred to as “Online Services”).
- General Terms and Conditions, Definitions
1.1. These General Terms and Conditions (hereinafter referred to as “T&C”) apply exclusively; we do not accept contrary conditions or conditions of the customer that deviate from these Terms and Conditions unless we explicitly approve of their application in writing.
1.2. “Data Collection” shall be comprised of data contained in the AVERBIS Patent Monitor, including but not limited to patent data, linguistic resource data, business data, technical data and scientific data as well as updates thereto retrieved from different sources. This data is aggregated into a unified archive available via the Online Service.
1.3. A “Substantial Part” of the Data Collection is defined as any subset of Data from the Data Collection containing more than the usual results of a specific research within of the Data Collection, but in any case a Substantial Part shall be given, if the subset of Data contains more then 5% of the Data from a specific source.
- Subject matter of the Agreement
2.1. These T&C govern the Online Services provided by AVERBIS. Through the Online Services AVERBIS provides the customer with the technical possibility and authorisation to access services, which are operated on a server of AVERBIS, via the Internet under https://www.patent-monitor.ai directly in the web browser and to use the functionalities of the Online Services in connection with this Agreement.
2.2. The kind and scope of the Online Services are conclusively described on https://www.patent-monitor.ai. The contractual services are based on the customer’s electronical order.
2.3. Unless otherwise agreed in the order, the Online Service is available 24/7 (“Operation Hours”). The average availability during the Operation Hours amounts to a monthly average of 99.5 % regarding the scope of responsibility of AVERBIS. Regular maintenance windows of the system are not included in the calculation of the availability (“Maintenance Times”). During the aforementioned times, the application might still be available, but may also be subject to interruptions and limitations; however, there is no claim for use. If maintenance works are required during the Operation Hours and the application is hence not available, AVERBIS will, if possible, inform the customer about this in due time.
2.4. Besides, and unless otherwise explicitly agreed between the Parties, AVERBIS is not obliged to any further services. In particular, AVERBIS is not obliged to provide services with regards to the installation, equipment, advice, adjustment and/or training as well as with regard to the development and supply of individual programming and/or additional programmes.
- Right of use
3.1. During the term of this Agreement, AVERBIS grants to the customer the non-exclusive, non-assignable, non-sublicensable right to access the Online Services on AVERBIS’ server via the Internet and to use the functionalities linked to the Online Services through a web browser in accordance with this Agreement. The customer does not receive any additional rights, in particular with reference to the software. The software is not handed over to the customer.
3.2. The customer is not entitled to use the Online Services beyond the use permitted in accordance with this Agreement or to make them available to third parties. In particular, the customer is not entitled to reproduce or sell the Online Service wholly or in parts or to permit the use for a certain period; the customer is in particular not entitled to rent or lend it and is not allowed to distribute or sublicense to any third party all or a Substantial Part of the Data Collection contained in the Patent Monitor or use it for any use other than the use granted herein.
3.3. The customer may only use the Online Services for his own business activities through own staff and/or authorised third parties who use the Online Services on behalf of him (“Authorised Users”). The customer ensures that the Authorised Users use the Online Services only within the scope of and pursuant to these T&Cs.
3.4. AVERBIS and its third-party sources retain all rights, title and interest in and to the Data Collection contained in the Patent Monitor under applicable copyright and intellectual property laws and Customer acquires no ownership rights in all or any part of the Data Collection contained in the Patent Monitor. Therefore Customer and each of its respective end-users are bound to (i) abide by all laws, rules and regulations applicable to their use and distribution of the Data Collection; (ii) acknowledge that AVERBIS and its third party sources retain all rights, title and interest in and to the Data Collection contained in the Patent Monitor under applicable copyright and intellectual property laws and the Licensee does not acquire any ownership rights in all or any part of the Data Collection contained in the Patent Monitor; and (iii) the applicable license rights granted and license restrictions contained in these T&C´s. Customer Agrees
- not to remove or change any copyright notices, trademarks, disclaimer notices, proprietary markings, restrictive legends or any digital watermarks included in or placed on the Data Collection contained in the Patent Monitor;
- to take all necessary commercially reasonable security measures to ensure the integrity of the Data Collection contained in the Patent Monitor and to safeguard it from unauthorized access, copying, modification, change, translation, adaptation and use
- not to use the Data Collection contained in the Patent Monitor and/or the Software to copy, replicate, reverse-engineer, or otherwise capture any of the data transformation processes used by AVERBIS to assemble the Data Collection and the Software including by not limited to embedded data structures, data integration processes, data transformation logic, editorial practice, data tagging, or quality control methods.
Neither Customer nor any end user shall provide any third party or end-user access to the Data Collection in such a way that any form of web crawler or other data retrieval tool or service is able to collect and reconstruct any Substantial Part of the Data Collection contained in the Patent Monitor.
3.5. In the case of an unauthorised permit of use, the customer shall immediately and upon request provide AVERBIS with any information for the assertion of claims against the user, in particular his/her name and address.
3.6. If the contractual use of the Online Services is affected by IP rights of third parties without AVERBIS’ fault, AVERBIS is entitled to refuse rendering the services affected by this. AVERBIS will inform the customer about this immediately and will grant him/her access to his/her data in an appropriate way. In any such case the customer is not obliged for payment. Any other claims or rights of the customer shall remain unaffected.
- Beta version
4.1. As the Online Services provided to the customer are provided a beta version of the Online Services, he can use it free of charge until the Online Services are cancelled by AVERBIS in accordance with the provisions of this Agreement.
4.2. FOR THIS PERIOD AVERBIS DOES NOT GUARANTEE OR WARRANT AND IS NOT LIABLE FOR DAMAGES INCURRED BY THE USE OF THE TEST VERSION, EXCEPT FOR WILFUL ACTS AND GROSS NEGLIGENCE. THE DATA COLLECTION CONTAINED IN THE PATENT MONITOR IS PROVIDED ON AN “AS-IS”, “AS-AVAILABLE” BASIS AND AVERBIS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE DATA COLLECTION, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, ACCURACY, OR THE PRESENCE OF ERRORS, LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE.
4.3. AVERBIS may at any time without cause cancel this agreement and/or discontinue the Online Services at any time.
4.4. Customer data, which was created and/or inserted via beta version, cannot be transferred to a production version; they will be deleted by AVERBIS after the expiry of the beta period.
- Obligations of the customer / indemnification
5.1. The customer will protect the authorisations for use and access as well as the identification and authentication protections assigned to him and/or the users from the access by third parties and the customer will not forward this information to unauthorised users. As soon as the customer gets aware that the authorisations for use and access have been obtained by a third party in an illegal way or that they might be misused, the customer is obliged to immediately inform AVERBIS for the purposes of mitigating the damage.
5.2. The customer will not use the Online Services in any way constituting a misuse, or have them used in any such way; in particular, the customer will not transmit any illegal contents. Moreover, the customer will also refrain from any attempt to illegally retrieve information or data itself or via non-authorised third parties or to intervene into programmes operated by AVERBIS, or arrange for such intervention, or to intrude into data networks of AVERBIS in an illegal way.
5.3. The customer will immediately report any errors of the contractual services to AVERBIS in writing, stating how and under which circumstances the error and/or the defect occurs and the customer will actively support AVERBIS with the troubleshooting.
5.4. The customer will secure the data transmitted to AVERBIS on a regular basis and appropriately to possible risks and create own backups in order to be able to restore the data and information in the case of loss. AVERBIS is not obliged to perform any data backups.
5.5. The customer indemnifies AVERBIS from any claims of third parties which are based on an illegal use of the Online Services by him or occur with his approval or which, in particular, result from data protection law disputes, copyright law disputes or any other legal disputes connected to the use of the Online Services. If the customer realises, or has to realise, that any such infringement is imminent, he is obliged to immediately inform AVERBIS.
6.1. No Party excludes or limits its liability under this Agreement for:
- death or personal injury caused by its negligence or the negligence of its servants, agents or employees;
- fraudulent misrepresentation;
- wilful intent or gross negligence
- pursuant to the terms of the German Product Liability Act;
- pursuant to Art. 82 GDPR;
- under a guarantee granted by AVERBIS, or
- any other type of loss which cannot by law be excluded or limited.
In all other cases of liability, AVERBIS liability in contract, tort, negligence, pre-contract or other representations (other than fraudulent misrepresentations) or otherwise for:
- any loss of business, contracts, profits, revenues, data, capital or anticipated savings;
- any loss of goodwill or reputation; or
- any special, indirect or consequential losses,
6.2. Insofar as AVERBIS’s liability is excluded or limited, such exclusion or limitation applies mutatis mutandis to the personal liability of its employees, members of staff, representatives and vicarious agents of AVERBIS.
- Data protection and data security
7.1. The data uploaded by the customer will be saved on servers in Germany.
7.2. AVERBIS does not collect, process or use any personal data on behalf of the customer in connection with rendering the services pursuant to this Agreement; AVERBIS does not have access to any such data either.
- Final provisions
8.1. This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany without regard to conflicts of law principles and the UN Convention on the International Sale of Goods (CISG).The parties agree that the exclusive venue for any disputes arising under this Agreement shall be the state and federal courts located in Freiburg, Germany.
8.2. If individual clauses of the present Agreement are or become invalid wholly or in part, any possibly invalid provision shall be reinterpreted, supplemented or replaced in a way that the economic purpose that was originally intended with the invalid provision is achieved. The same shall apply if this Agreement contains any gaps.