AvenDATA SE, Dietmar-Hopp-Allee 16, 69190 Walldorf/Germany, together with its wholly owned subsidiaries (collectively “AvenDATA“) have created, owned, and operated multiple websites, (each individually referred to hereunder as the “AvenDATA Website” and collectively “AvenDATA Websites”). The AvenDATA Websites allow you (“You” or “Your“) and other AvenDATA software experts, developers, users, and other interested parties (each, a “User” and collectively, “Users“) to engage in varied activities. For example, finding information, purchasing and/or performing research on AvenDATA and related software and services, obtaining support for AvenDATA software and services, sharing information with AvenDATA and third parties, posting comments, blogging, providing reviews, voting on prospective features, and engaging in conversations and activities related to AvenDATA’s products and services. The websites also include information created and published by AvenDATA (“AvenDATA Materials”) and third parties (“User Content”), such as text, images, photographs, graphics, audio and video, data, code, and software (collectively, the AvenDATA Materials and User Content are referred to as “Content”).
2. ACCEPTANCE OF TERMS
AvenDATA may modify the TOU to reflect changes in AvenDATA’s business, applicable law, or for other reasons deemed necessary by AvenDATA. If the terms of the TOU change, AvenDATA will provide notice, which may include, but is not limited to notice provided through the Websites or an AvenDATA user account. Except where prohibited by law, updates to the TOU will apply once the changes have been posted or notice has otherwise been given. The changes to the TOU will, however, not apply retroactively. If You do not agree to the changes made to the TOU, You must discontinue your use of the affected AvenDATA Website, AvenDATA Materials, or User Content.
3. USER CONTENT/LICENSE TO AVENDATA
AvenDATA does not claim ownership of User Content that you post, upload, input or submit to any AvenDATA Website. By posting, transmitting or uploading any User Content, including any article, information, data, code, text, software, documentation, graphic, image, marketing material, video, photograph, message, suggestion, feedback, idea, or posting to any forum, wiki, or blog on any AvenDATA Website, You grant to AvenDATA a perpetual, irrevocable (subject to mandatory data protection requirements), non-exclusive, world-wide, fully-paid up and royalty free license to use such User Content without restrictions of any kind and without any payment or other consideration of any kind, or permission or notification, to you or any third party. This license includes, without limitation, the irrevocable (subject to mandatory data protection requirements) right to reproduce, prepare derivative works, combine with other works, alter, translate, distribute copies, display, perform, license and provide the User Content to the third parties; to make, have made, offer to sell, sell, lease, or otherwise distribute any User Content or product; and to practice any method, embodying such User Content (including the right to sublicense any of the foregoing).
You represent and warrant to AvenDATA that You have the right, title, and/or authority to grant such license to AvenDATA. AvenDATA may elect not to post or publish User Content that You submit. If AvenDATA elects to post or publish Your User Content, AvenDATA may in its sole discretion withdraw the posted or published User Content for any reason and without notice even if AvenDATA has previously indicated to You that AvenDATA might or will post the User Content You have submitted.
You acknowledge and agree that the relationship between You and AvenDATA is not a confidential, fiduciary, or other special relationship. AvenDATA shall have the right, but not the obligation, to use Your name, likeness, biography and other information about You that You have provided in connection with any use of the User Content You submit, and AvenDATA may continue to use this information after any termination of your account or Your access to the Websites for the purpose of identifying the source of User Content that you previously submitted. Nothing in this TOU shall prohibit or restrict AvenDATA’s right to create or obtain User Content or submissions similar to or competitive with the User Content that You have submitted.
4. PERMISSIBLE USE OF AVENDATA WEBSITES AND CONTENT
The AvenDATA Websites, the AvenDATA Materials, and the User Content are for your non-commercial use, that is, your use must not be intended for or directed towards commercial advantage or monetary compensation. You may not copy, modify, distribute, transmit, display, perform, publish, license, create derivative works from, transfer, rent, lease, or sell the AvenDATA Websites, AvenDATA Materials, or User Content. You may, however, download, store, and display on your computer or other electronic device, solely to view, listen, play, and print AvenDATA Materials and User Content; provided that (a) the AvenDATA Materials and User Content may only be used for informational, non-commercial purposes and will not be copied or posted on any computer network, or otherwise published, broadcasted, or distributed in any manner or media; and (b) the AvenDATA Materials and User Content may not be modified or altered in any way, including any copyright notices.
You may not use the AvenDATA Websites in any manner that could damage, disable, overburden, or impair any AvenDATA server, or the network(s) connected to any AvenDATA server, or interfere with any other party’s use and enjoyment of any AvenDATA Website. You may not attempt to gain unauthorized access to any AvenDATA Website, other accounts, computer systems or networks connected to any AvenDATA server, through hacking, password mining or by any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the AvenDATA Websites.
You agree not to use the AvenDATA Website to:
5. TERMINATION OF USE
AvenDATA may, in its sole discretion, at any time, discontinue providing or limit access to the AvenDATA Websites, any areas of the AvenDATA Websites, or any AvenDATA Materials or User Content provided on or through the AvenDATA Websites. You agree that AvenDATA may, in its sole discretion, at any time, terminate or limit your access to, or use of, any or all the AvenDATA Websites or any AvenDATA Material or User Content. In the event wherein You are in a material breach of the TOU, AvenDATA may, at its sole discretion, suspend or terminate Your account, delete Your Content from the AvenDATA Website, and refuse You for using (currently or in future) the AvenDATA Website without notice. AvenDATA shall not be liable to You or any third party for any such suspension or termination.
If You wish to terminate your account, you may do so by submitting your request via email at firstname.lastname@example.org. Please note that in the event of electing to terminate your account, AvenDATA has the right and may elect to continue to post and publish the content on the Websites, personally identifying the information associated with the User Content that You have posted.
6. AVENDATA CONTACT
AvenDATA is not obligated to evaluate or provide any comments to you regarding the User Content that you submit. At AvenDATA’s sole discretion, AvenDATA may contact you with critiques, updates, feedback, status or questions regarding your submission. In no event will any such contact or communication from AvenDATA obligate AvenDATA to adopt your submission, provide a timeframe for evaluation, or even provide any additional communication regarding your submission.
7. CONFIDENTIAL INFORMATION
Except for AvenDATA Websites, which are clearly identified as non-public forums (each a ”Non-Public Forum“), AvenDATA Websites are intended to be public forums, and You agree not to provide AvenDATA or other Users with any confidential or proprietary information that You or the owner of the information do not intend to become public information. Except for User Content clearly labelled as confidential that You upload into a Non-Public Forum, any User Content that You send or upload to the AvenDATA Website will be deemed NOT to be confidential or proprietary, and You expressly agree that You waive any trade secret or other confidentiality rights with respect to such User Content.
You agree not to reproduce any Confidential Information to which you are provided access through the AvenDATA Website in any form except as authorized at the time of disclosure. Any reproduction of Confidential Information shall remain the property of AvenDATA or the third party that has prepared such information and shall contain any and/or all confidential or proprietary notices or legends, which appear in the original format. You agree to (a) take all reasonable steps (defined below) to keep all the Confidential Information strictly confidential; (b) to use Confidential Information solely as authorized at the time of disclosure and (c) not to disclose any Confidential Information to any party without the prior written consent of AvenDATA or the third party that has prepared such information. You do not acquire any rights in Confidential Information except the limited rights as described herein. In no event shall You use Confidential Information to create, enhance, modify, rent, lease, loan, sell, distribute or create derivative works based on the AvenDATA Software or AvenDATA Websites, or compete with AvenDATA Software or AvenDATA Websites in whole or in part. As used herein, ‘Confidential Information’ shall mean all trade secrets, intellectual property rights, and other information about AvenDATA or third parties protect against unrestricted disclosure to others which is (i) either labelled Confidential and accessed through a restricted or non-public area of the AvenDATA Website or pursuant to software downloads, or (ii) reasonably identifiable as confidential based on the type of information and the manner of its disclosure. As used herein ‘reasonable steps’ means those steps You and/or Your Company take to protect Your own Confidential Information, which shall not be less than the industry standard of care.
ALL USER CONTENT POSTED BY YOU TO THE AvenDATA WEBSITE, WHETHER INTO A PUBLIC FORUM OR NON-PUBLIC FORUM, SHALL BE AT YOUR OWN RISK, AND AvenDATA TAKES NO RESPONSIBILITY FOR THE USE OR MISUSE OF ANY SUCH UPLOADED INFORMATION BY ANY OTHER USER OF THE AvenDATA WEBSITE.
8. YOUR INFORMATION, PRIVACY, AND DATA PROTECTION
You are responsible for and agree to provide AvenDATA with complete, true, and current information, including Personal Data, and to keep Your Personal Data accurate and up to date. You can always correct or update Your Personal Data. Further, You may request information about Your Personal Data stored with AvenDATA, or the correction (in case the relevant Website is not allowing You to correct or update your information), or deletion of Your Personal Data by contacting at email@example.com. Please note that if You request the deletion of your account or Personal Data, You might not be able to access and use the AvenDATA Websites and your User Content.
You are solely responsible about the usage and security of Your password and any activities that occur under Your account. You shall not use the account of anyone else at any time. You understand and agree that AvenDATA collects, uses, stores, and otherwise processes Your personal information and utilization data and may share such data with the third party service providers for the purposes of improving or providing the AvenDATA Websites subject to AvenDATA’s Privacy Statement. YOU AGREE TO COMPLY WITH THE TERMS OF THE AvenDATA PRIVACY STATEMENT, WHICH CAN BE FOUND BY CLICKING THE ‘PRIVACY’ LINK AT THE BOTTOM OF EACH WEB PAGE ON THE AvenDATA WEBSITES.
9. INTELLECTUAL PROPERTY RIGHTS
As used herein, ‘Intellectual Property Rights’ means patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, trade secrets or confidentiality rights, and any other intangible property rights including applications for any of the foregoing, in any country, arising under statutory or common law or by contract and whether perfected or not, now existing or hereafter filed, issued, or acquired.
All Intellectual Proprietary Rights to any AvenDATA Software, the AvenDATA Websites, AvenDATA Materials, and User Content belongs to AvenDATA or the individual or entity that submitted it. Nothing in this TOU shall be deemed to give You the right to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative words from, transfer, or sell any AvenDATA Software, the AvenDATA Websites, any AvenDATA Materials, or any User Content for any reason, unless otherwise expressly permitted by the TOU or by law. You hereby agree to assign and do assign to AvenDATA (and AvenDATA accepts such assignment) any modifications or derivative works of any AvenDATA Software, the AvenDATA Websites, and AvenDATA Materials made by You in contravention of this limitation without remuneration of any kind.
Information on requirements for using AvenDATA trademarks can be found by clicking the “Trademarks” link at the bottom of each web page on the AvenDATA websites.
YOU AGREE TO COMPLY WITH THE TERMS OF THE ‘AvenDATA COPYRIGHT GUIDELINES’, WHICH CAN BE FOUND BELOW OR BY CLICKING THE ‘Copyright’ LINK AT THE BOTTOM OF EACH WEB PAGE ON THE AvenDATA WEBSITES.
10. RESPONSIBILITY FOR CONTENT AND LINKS
AvenDATA IS ONLY RESPONSIBLE OR LIABLE FOR THE CONTENT POSTED ON THE AvenDATA WEBSITE TO THE EXTENT REQUIRED BY THE GERMAN TELEMEDIA ACT (TELEMEDIENGESETZ, TMG). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF CONTENT SHALL BE AT YOUR OWN RISK. Any Content, whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the Content. AvenDATA does not represent or endorse the accuracy, reliability, completeness, usefulness, non-infringement of intellectual property rights, or quality of any Content provided by the third parties on the AvenDATA Website. AvenDATA may remove any Content posted on the AvenDATA Website at AvenDATA’s sole discretion, but, if You believe that the copyright material You hold is being infringed upon on any AvenDATA web site, please notify AvenDATA’s Copyright Agent in accordance with the procedure set forth at the following mail: firstname.lastname@example.org
AvenDATA Websites may contain links to external websites. AvenDATA shall not be responsible for the contents of any linked website, or any changes or updates to such websites. Additionally, AvenDATA shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with Your use of or reliance on any software, content, goods or services available on or through any such linked website. AvenDATA does not control and/or review the linked webpages and the information provided by the third parties.
11. USE OF AVENDATA AND THIRD PARTY SOFTWARE
Your access and use of any software or related documentation, including developer tools and sample code, and any application program interface information provided on the AvenDATA Website (collectively “Software”) is governed by the software license agreement and related documents and terms (for example, attachments, exhibits, order forms, disclaimers, etc.) (“License Agreement“) that accompany such Software. You may not use or install any Software that is accompanied by a License Agreement unless and until You first agree to the terms of the License Agreement. You must not modify, decompile, or reverse engineer any Software, except to the extent expressly permitted by applicable law or the License Agreement.
In the event wherein the Software provided through the AvenDATA Website is not accompanied by a License Agreement: The Software may be used solely for your personal, informational, non-commercial purposes; the Software may not be modified or altered in any way; and the Software may not be redistributed.
All AvenDATA Software is the copyrighted work of AvenDATA. Unauthorized copying, distributing, modifying, publicly displaying, or public performance of copyrighted works, including the AvenDATA Software, is an infringement of the copyright holder’s rights. Information on the process for requesting AvenDATA’s permission to use any AvenDATA-owned copyrighted works can be found by clicking the “Copyright” link at the bottom of each web page on the AvenDATA Websites.
You agree to indemnify and hold AvenDATA, its affiliates, subsidiaries, officers, agents, partners, employees, and licensors harmless from any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of Your User Content or Your usage of the AvenDATA Website, Your breach of this TOU, any additional legal terms, or AvenDATA’s Privacy Statement, Your unauthorized use of any AvenDATA-owned Intellectual Property, or Your alleged violation of any other rights of a third party.
The following applies if You access the AvenDATA Website from within the European Union::
You agree to indemnify and hold AvenDATA, its affiliates, subsidiaries, officers, agents, partners, employees, and licensors harmless from any claim or demand, including reasonable attorney’s fees, made by any third party against any of the aforesaid entities or persons due to or arising out of Your culpable breach of this TOU, any additional legal terms or AvenDATA’s Copyright or Privacy Statements.
13. EXCLUSION OF WARRANTIES
AvenDATA Websites and Content are being provided to You “AS IS”. To the fullest extent allowable by the law, AvenDATA does not guarantee or warrant any features or qualities of any AvenDATA Website or Content or give any undertaking regarding any other quality. Statements and explanations on AvenDATA Websites and Content in promotional material or on AvenDATA Website and/or documentation are made for explanatory purposes only; they are not meant to constitute any guarantee or warranty of certain features. No warranty or undertaking shall be implied by a User from any published AvenDATA description of or advertisement, except to the extent AvenDATA has expressly confirmed such warranty or undertaking in writing. Warranties are validly given only with the express written confirmation of AvenDATA’s management.
14. LIMITATION OF LIABILITY
Avendata will not be liable or responsible in any way for any User Content posted on or linked from an Avendata AvenDATA will not be liable or responsible in any way for any User Content posted on or linked from the AvenDATA Website, including, but not limited to, any errors or omissions in Content, or for any losses or damage of any kind incurred as a result of the use of or reliance on any Content or other material accessed on or through any AvenDATA Website and made available by a third party.
The following applies if You access the AvenDATA Website from outside the European Union:
TO THE EXTENT ALLOWABLE BY THE APPLICABLE LAW, AvenDATA AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS ARE NOT LIABLE TO ANY USER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF AvenDATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE AvenDATA WEBSITE, AvenDATA SOFTWARE, OR AvenDATA MATERIALS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES ARISING OUT OF YOUR USE OR INABILITY TO USE ANY AvenDATA SOFTWARE, AvenDATA MATERIALS OR SERVICES PURCHASED OR OBTAINED DURING TRANSACTIONS CONDUCTED ON THE AvenDATA WEBSITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS, MESSAGES, OR CONDUCT OF ANY THIRD PARTY ON THE AvenDATA WEBSITE; OR (v) ANY OTHER MATTER RELATED TO THE AvenDATA WEBSITE OR AvenDATA MATERIALS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THESE LIMITATIONS SHALL NOT APPLY IN CASE OF INTENT OR GROSS NEGLIGENCE BY AvenDATA AND IN CASE OF AvenDATA’s STATUTORY LIABILITY FOR PERSONAL INJURY AND DEFECTIVE PRODUCTS.
The following applies if You access the AvenDATA Website from within the European Union:
IRRESPECTIVE OF THE LEGAL REASONS, AvenDATA AND AvenDATA’s AFFIALIATES AND SUBSIDIARIES SHALL ONLY BE LIABLE IN THE FOLLOWING CASES:
IN ALL OTHER CASES, NEITHER AVENDATA NOR ITS AFFILIATES, SUBSIDIARIES, EMPLOYEES, AGENTS AND SUBCONTRACTORS SHALL BE LIABLE FOR ANY KIND OF DAMAGES OR CLAIMS HEREUNDER
15. APPLICABLE LAW
The following applies if You access the AvenDATA Website from outside the European Union:
The New York law will govern this TOU without giving effect to any principles of conflicts of laws. You also agree to comply with all the applicable export control laws as set forth under the ‘EXPORT CONTROL’ Section below, which are applicable to the transmission of data on the Internet, including, but not limited to the laws governing the use of encryption and laws governing the transmission of data across international boundaries, into prohibited countries, and containing personally identifiable information.
The following applies if You access the AvenDATA Website from within the European Union:
The laws of Germany will govern this TOU without giving effect to any principles of conflicts of laws. To the extent possible under the applicable law, venue for all the disputes in connection with this TOU shall be Karlsruhe, Germany.
Your confidentiality obligations hereunder shall survive termination of Your account. Upon any termination of Your account, or AvenDATA’s written request, You must cease use of Confidential Information, and/or AvenDATA Websites, and return or destroy all Confidential Information in Your possession or control.
17. WAIVER AND SEVERABILITY
The failure of AvenDATA to exercise or enforce any right or provision of this TOU shall not constitute a waiver of such right or provision. To the extent that any provision in this TOU shall be found to be invalid or unenforceable, such provision shall be modified in such a manner to make this TOU as modified, legal, and enforceable under the applicable laws and the balance of the provisions of this TOU shall not be affected thereby.
18. ENTIRE AGREEMENT
The TOU represents the entire arrangement between the Parties in respect of its subject matter and supersedes all prior agreements, understandings or arrangements (both oral and written) related to its subject matter. No collateral agreements have been made.
19. EXPORT CONTROL
AvenDATA Websites may not be accessed or used by any national or certain countries or groups against which the United States and/or European Union have instituted sanctions (including Iran, Cuba, North Korea, Syria, and Sudan), Specially Designated Nationals, and other proscribed persons, who are listed on the Denied Parties list. Further restrictions apply to any end user, who will utilize the Content provided on the AvenDATA Website in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems; or any end user, who has been prohibited from participating in the U.S. and/or EU export transactions by any agency of the U.S. government or European Union.
Due to technical uncertainties preventing verification of the identity and ultimate point of access by any person attempting to access or use the AvenDATA Website, Your access of the AvenDATA Website, including the presentment of any authorized user ID and password, constitutes Your express representation that (1) the person attempting access thereunder is not a national of any such sanctioned country or group or a Specially Designated National, and (2) is not included on such Denied Parties list, 3) has not been prohibited from participating in U.S. and/or EU export transactions; 4) such use is not restricted, and (5) that, as an Authorized User, You have not disclosed or provided such password and user ID to any such person for use under Your registration. Users shall be fully liable and subject to prosecution to the full extent of the law for any violations of this paragraph.
The following applies if You access the AvenDATA Website from outside the United States and European Union:
The following applies if You access the AvenDATA Website from within the United States:
You agree that Your use of the AvenDATA Website, or any Content will always be compliant with the U.S. export control laws and executive orders. The information provided on and through the AvenDATA Website may be deemed in some cases to be controlled technology and subject to the export control restrictions of the United States and other jurisdictions.
IT IS YOUR OBLIGATION TO VERIFY AND COMPLY WITH ALL THE APPLICABLE LAWS AND REGULATIONS OF THE UNITED STATES AND OF THE COUNTRY FROM WHICH YOU ARE ACCESSING THE AvenDATA WEBSITE.
Revised and posted as of 22 August 2022