1.1 These General Terms and Conditions apply to orders placed by the customer with Lenz + Partner GmbH, Bronnerstr. 7, 44141 Dortmund (hereinafter referred to as "L+P"), registered in the Commercial Register of the Local Court of Dortmund under HRB 28470, legally represented by its Managing Director Dirk Albrecht.
1.2 For the purposes of these GTC, the term "Financial Information" is understood by the parties to mean financial information and data, such as news, prices (real-time, delayed, historical tick, period and end-of-day data), prices (warrant and certificate prices), indices, etc. (hereinafter referred to as "Financial Information"). Financial Information is offered to the client both as a basic service and as additional products.
1.3 For the purposes of these GTC, the parties understand the term "Basic Service" to mean the basic financial information offered to the customer for the respective software product.
1.4 For the purposes of these GTC, the parties understand the term "Additional Products" to mean financial information that is offered to the customer in addition to the Basic Service for the respective software product.
1.5 For the purposes of these GTC, the term "Software" shall mean the software products TAI-PAN-Realtime, the Lenz + Partner data interface ("Lenz + Partner NinjaScript Add-On"), TAI-PAN-End-of-Day, b.i.s.-Realtime Terminal and market maker.
1.6 Any other terms and conditions of the customer or verbal collateral agreements shall only apply if they are recognized by L+P in writing. Acceptance of L+P's contractual services by the customer shall be deemed to constitute acceptance of these General Terms and Conditions.
2.1 Contracts with L+P shall come into effect upon receipt of the customer's order by L+P in accordance with the provisions in the cancellation policy.
2.2 If the Tai-Pan end-of-day or market maker software has been purchased by the customer, the software will be provided to the customer for an unlimited period of time.
2.3 Contracts for software and for the basic service are generally concluded for an indefinite term and may be terminated by giving two weeks' notice to the end of a calendar month. If a minimum contract term has been agreed for a contract, the contract shall always be extended by the duration of the minimum contract term selected by the customer, unless the contract is terminated at the end of the minimum contract term or at the end of a subsequent contract period with a notice period of 6 weeks. If the original minimum contract term was 24 months, the contract shall be extended by 12 months at a time, beginning on the first day of the month in which the order was placed, irrespective of the fact that the first calculation date may be later.
2.4 If the customer has ordered additional products for the basic service, the term of these additional products shall be based on the term of the basic service purchased. However, the customer is entitled to terminate additional products separately at the end of the respective valid contract period for the basic service, without the customer terminating the basic service itself. Termination of the basic service also constitutes termination of the additional products.
2.5 Trial versions end at the end of the trial period without the need for termination.
2.6 Unless otherwise agreed in the contract, the customer's authorization to use the software and the financial information obtained ends upon termination of the contract.
2.7 When obtaining real-time data, it is necessary for the client to sign the terms of use of stock exchanges. As long as the customer has not signed these, the corresponding data of the respective exchange cannot be activated for the customer.
2.8 When placing an order, the customer must indicate whether he is a "private investor" or a "professional". If he indicates this, he must sign the "Declaration of Private Investor Status" for the subscription of Financial Information of Deutsche Börse AG and the "Vienna Stock Exchange Non-Professional User Statement" for the subscription of Financial Information of the Vienna Stock Exchange. As long as the signed declarations have not been submitted, the customer is considered a "Professional".
3.1 Details of the scope of the financial information to be provided by L+P are set out in the order placed by the customer and in future orders. L+P grants the customer a right of use to the financial information provided, limited to the term of the contract concluded, for the purpose of using the financial information within the scope of the software provided.
3.2 The risk of partial or complete non-transmission of Financial Information shall pass to the customer as soon as the Financial Information has left L+P.
3.3 The customer is aware that L+P essentially obtains the financial information from third parties, in particular stock exchanges, financial service providers, news agencies and other third-party providers. L+P is not in a position to verify the accuracy, completeness and up-to-dateness of this information obtained from third parties, so that L+P is not responsible for it. L+P therefore does not warrant or guarantee the accuracy, completeness and timeliness of the information obtained from third parties, which the customer acknowledges. This exclusion shall not apply if L+P has fraudulently concealed a defect or has assumed a guarantee for the quality. The customer further acknowledges that the third parties listed above are not vicarious agents of L+P.
3.4 If the customer is provided with information that is dependent on contracts that L+P or its parent company, Infront Financial Technology GmbH (Infront GmbH), has concluded with third parties (in particular with stock exchanges, financial service providers, news agencies and other third-party providers) and these third-party contracts are terminated for whatever reason or are permanently not fulfilled in whole or in part, L+P is entitled to remove the information from the scope of delivery in this respect. In this case, the contract shall continue to exist without the customer being entitled to terminate the contract for this reason. L+P shall replace the removed information with other information within a reasonable period of time. However, if the removal of the information from the scope of services is unreasonable for the customer, the customer shall have the right to terminate the contract at the time at which L+P removes the information from the scope of services.
3.5 The customer is only permitted to use the financial information within the scope of the software provided to it. Any use beyond this, such as the Financial Information
3.6 Some of the financial information is subject to copyright protection. Insofar as the financial information is provided with a copyright notice, the customer is not entitled to remove it.
3.7 If the client uses the financial information in a manner that does not correspond to the use agreed in the contract, the client must indemnify L+P, Infront GmbH and all data suppliers of L+P and Infront GmbH against third-party claims and pay for all damages, expenses, costs, etc. incurred by Infront GmbH, L+P or its data suppliers in connection therewith.
3.8 L+P and Infront GmbH do not provide investment advice and do not make investment recommendations. L+P points out that the future performance of the price of a security or a derivative financial instrument cannot be predicted with absolute certainty. Any buy or sell signals or other trading advice given by means of software are therefore purely suggestions. No liability is assumed for the accuracy of these suggestions.
3.9 L+P and Infront GmbH do not offer financial services within the meaning of the German Banking Act or securities services within the meaning of the German Securities Trading Act.
4.1 The customer is obliged to inspect the software provided to him immediately upon receipt for deviations from the agreed quality or other defects (hereinafter: defects), whereby the customer is aware that, according to the state of the art, errors in the software and the associated other material cannot be completely ruled out. The customer must report any defects found immediately in writing and with a comprehensible description of the error symptoms. If the customer fails to inform L+P GmbH of the defects in good time, the liability of L+P GmbH shall be excluded.
4.2 Modifications and extensions of the software or maintenance of the same, as well as its installation, software maintenance and other support, are not part of the scope of services owed by L+P GmbH, unless expressly agreed otherwise.
4.3 The software provided to the customer by L+P is protected by copyright. The customer is only entitled to the rights of use to the software expressly granted under the contract (including these General Terms and Conditions). All other rights, in particular industrial property rights and the copyright to the software, shall remain with L+P GmbH or the owner of the property rights to the software.
4.4 The customer has a simple, non-sublicensable right to use the software provided. If the software is provided for a limited period, the right of use shall be limited to the term of the contract; if the software is provided for an indefinite period (purchase), it shall be unlimited in time.
4.5 Use is the running of the software on a single computer workstation of the customer, unless expressly agreed otherwise. A computer workstation also includes a customer's computer or laptop that is used to run the software at home or on the move. The use includes the import of the software or data into the working memory and/or into a fixed memory of the customer's computer.
4.6 The customer receives the right of use on condition that the agreed remuneration is paid in full and on time. This means that the customer may not use the software as soon as and as long as he fails to pay the agreed remuneration properly.
4.7 The customer is entitled to reproduce the software within the scope of the contractual use exclusively for backup purposes.
4.8 The customer may transfer software that has been transferred to it on a permanent basis (purchase) to a third party, provided that
4.9 The customer may not transfer software that has been provided to him for a limited period of time to third parties.
4.10 The source code is not part of the scope of delivery. The customer has no claim to this.
4.11 The customer is obliged to take suitable precautions to prevent unauthorized access by third parties to the software and the financial information.
4.12 The statutory provisions shall apply to L+P's warranty obligations, whereby any claim for damages by the customer due to defects shall be excluded. This exclusion shall not apply if L+P has fraudulently concealed the defect or has assumed a guarantee for the quality.
5.1 The customer shall pay L+P the agreed remuneration for the software and the financial information. The customer shall pay the agreed remuneration in advance in accordance with the payment intervals selected by the customer in the contract (monthly, quarterly, etc.).
5.2 In accordance with the order form, the customer may be granted a discount for the contract term selected by the customer. If, in the case of a minimum contract term of 24 months, the contract is subsequently extended by 12 months (see clause 2.4), the customer shall be granted the discount for the extension period that is provided for in the order form for a 12-month period.
5.3 L+P shall be entitled to increase the fee payable by the customer once per calendar year after giving two months' written notice to the beginning of each month. If such an increase exceeds the increase in the consumer price index (overall index) for Germany (base 2005 = 100) published by the Federal Statistical Office by more than 2 percentage points (the increase between the month in which the price increase is announced and the same month in the previous year shall apply), the customer shall be entitled to terminate the contract by giving one month's notice to the date on which the increase comes into effect.
5.4 If the customer is in default of payment, L+P shall be entitled to suspend the services until the outstanding remuneration has been paid. The customer's payment obligation for the period of non-delivery shall remain unaffected by this.
5.5 L+P is also entitled to set the customer a grace period of 14 days to settle the outstanding payment in the event of default in payment, under threat of termination, and to terminate the contract without notice if this grace period expires without result. The right to claim default interest and damages shall remain unaffected in this case.
5.6 The customer shall only be permitted to offset against legally established or undisputed claims or, if the customer is a company (§ 14 BGB), to exercise rights of retention in respect of such claims.
5.7 Insofar as we collect and store your e-mail address with your consent when the contract is concluded or if this is stored by us on the basis of a profile you have created, you agree that we may send you our invoice by e-mail.
6.1 In the event of simple negligence, L+P shall only be liable for damages to the customer in the event of a breach of cardinal obligations (essential contractual obligations, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the contractual partner may regularly rely).
6.2 If L+P is liable, it shall only be liable to the extent that the damages are foreseeable and typical for the contract.
6.3 The limitation of liability in clause 6.2 shall not apply in the case of liability to an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB) if the damage is based on the fact that a legal representative or executive employee of L+P has acted with intent or gross negligence or another employee or vicarious agent has acted with intent or gross negligence in breach of a cardinal obligation.
6.4 The limitations of liability in Section 6.2 shall not apply to a consumer within the meaning of Section 13 BGB in the event of intent or gross negligence on the part of L+P's legal representatives, executives or vicarious agents.
6.5 The exclusions or limitations of liability set out in sections 6.1 to 6.4 shall not apply in the event of damage due to the absence of assurances given or liability under the Product Liability Act or in the event of damage to life, limb or health.
6.6 If the customer asserts claims directly against the legal representatives, employees or vicarious agents of L+P, the provisions in sections 6.1 to 6.4 shall apply equally in their favor, to the extent permitted by law.
7.1 Trademarks, company logos, other marks or industrial property notices, copyright notices, serial numbers and other features serving to identify L+P products or individual elements thereof may not be removed or altered. This also applies to printouts made from the information.
7.2 L+P is entitled to refer to its cooperation with the customer in the ordinary course of business and to use the customer's company name and logo in this respect. However, this shall only apply as long as the customer does not raise any objections to the use of the company name and/or logo.
8.1 L+P and the customer shall treat business and trade secrets received from the other party and contractual details of their cooperation as strictly confidential.
8.2 L+P shall be released from its contractual obligations and liability shall be excluded if it is prevented from fulfilling them by industrial action, official or judicial measures or other events of force majeure and is not responsible for this. Furthermore, L+P shall be entitled to extraordinary termination of the contract in the aforementioned cases. L+P shall inform the customer immediately that one of the aforementioned cases exists.
8.3 L+P is entitled to transfer individual or all rights and obligations under the contract to a third party without the customer's consent.
8.4 The contractual relationship between L+P and the customer shall be governed exclusively by German substantive law, to the exclusion of the provisions of private international law (EGBGB). Furthermore, the United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980 is also excluded.
8.5 Verbal ancillary agreements, additions and/or amendments to the contract must be made in writing. This shall also apply to any waiver of the written form requirement. Transmission by fax shall be deemed compliance with the written form requirement.
8.6 Should a provision of the contract or these General Terms and Conditions be or become invalid, this shall not affect the validity of the contract or the remaining provisions of these General Terms and Conditions. Rather, the invalid provision shall be replaced by way of supplementary interpretation of the contract by a legally valid provision that comes as close as possible to the economic purpose recognizably pursued by the contracting parties. The same applies to the filling of any gaps in the contract and in the event that several provisions are or become invalid.
8.7 If the customer is a merchant, a legal entity under public law or a special fund under public law (Section 38 (1) ZPO) or if the customer has no general place of jurisdiction in Germany (Section 38 (2) ZPO), the registered office of L+P shall be the exclusive place of jurisdiction for all disputes between the parties arising from or in connection with the contract or these General Terms and Conditions. However, L+P shall remain entitled to sue the customer at its place of residence or registered office.
8.8 The following shall be recorded/agreed with regard to the suppliers of financial information:
a. The suppliers of the financial information assume no guarantee and no liability for the accuracy, completeness and timeliness of the data and information supplied or made available by them and do not provide any investment advice, investment recommendation or similar with the provision and/or delivery of the data and information.
b. Additional regulations for Dow Jones:
c. Additional regulations for Dow Jones Indices:
Furthermore, the client agrees - and this is a prerequisite for the (further) receipt of index data generated by Dow Jones & Company Inc, or its affiliates or authorized parties - that it will not develop, create, issue or sponsor any financial instruments or investment products through its existing exchange facilities (including, but not limited to, derivatives, structured products, mutual funds, exchange-traded index funds, or derivatives based on exchange-traded index funds (e.g. options on exchange-traded index funds or futures on exchange-traded index funds). (e.g. options on exchange-traded index funds or futures on exchange-traded index funds)) where the price, return and/or performance of these instruments or products are determined on the basis of any index published by Dow Jones, or on the basis of a financial instrument or investment product (e.g. an exchange-traded index fund) linked to a Dow Jones index or to an index created on behalf of Dow Jones, are related to these indices or are intended to replicate them. The foregoing applies unless a separate written agreement has been entered into with Dow Jones for this purpose.
Germany