General Terms and Conditions for Dairy Ration
Effective: June 8, 2018
“Dairy Ration” is an application for feed management for dairy cows which is offered as “software as a service (SaaS)” as a browser, mobile or desktop application. The following General Terms and Conditions (hereinafter referred to as the “GTC”) contain rules for the use of Dairy Ration as well as a description of the contractual relationships between users and the provider of Dairy Ration. These GTC are intended to provide the necessary legal framework and transparency to guarantee the secure, transparent and efficient operation of Dairy Ration.
Table of Contents:
- Scope of applicability and definitions
- Scope of the services and functions
- Restriction of the service to the management and calculation functions
- Restriction of the paid services to companies
- Registration and the conclusion of the contract
- Remuneration and invoicing
- Responsibility for content and information
- The user’s obligations
- Use authorization
- Granting of usage rights by the user
- Further development
- Availability, disruptions and maintenance
- Limitation of liability
- Data protection
- Confidentiality and secrecy
- Amendments to these GTC
- Final provisions
1. Scope of applicability and definitions
- The subject of these GTC is the use of the “Dairy Ration” applications and websites, functions, services, data storage (hereinafter referred to as “hosting”) and interfaces (hereinafter referred to jointly as “software”) offered in connection with it, which will be provided as software as a service (hereinafter referred to as “SaaS”), irrespective of the domains, systems, platforms and devices used (e.g. desktop or mobile) on which Dairy Ration is run.
- The provider of Dairy Ration is byhead solutions UG (limited liability) Rothenbaumchaussee 113 20148 Hamburg, /impressum.html; (hereinafter referred to as “byhead solutions”, “we” or “us”).
- These GTC regulate the legal relationships between users of Dairy Ration and byhead solutions.
- The term “users” encompasses all users of Dairy Ration, irrespective of whether the use is paid, free of charge, ongoing use or test use.
- The term “person” encompasses both natural and legal persons and groups of persons with legal capacity (e.g. private corporations (GbR), general partnerships (OHG), limited liability companies (GmbH) etc.).
- The terms used in these GTC such as “user” should be understood as being neutral in terms of gender.
- A consumer in the meaning of these GTC is any natural person who concludes a legal transaction for a purpose which can be predominantly attributed neither to his/her commercial nor independent professional activities (Article 13 of the German Civil Code (Bürgerliches Gesetzbuch – BGB)).
- A company is any natural or legal person or a partnership with legal capacity which when concluding a legal transaction acts in performance of its commercial or independent professional activities (Article 13 BGB). In these GTC agencies are understood as being companies.
- The term “content” as used herein means any content or information uploaded by users onto Dairy Ration or otherwise transferred to byhead solutions, for example information regarding persons, animals, feed, rations or establishments or any texts, photographs or links.
- By using Dairy Ration, the user declares that it agrees to these GTC.
- Individual arrangements or provisions on special services or service areas, insofar as they have been effectively incorporated by byhead solutions, shall become a part of the contract with the user and shall take precedence in the event of a contradiction with these GTC.
- Any differing general terms and conditions of the user shall only be effective insofar as byhead solutions has explicitly agreed to them in writing. Failure to reject contradictory general terms and conditions of the user communicated by it does not constitute agreement to them.
2. Scope of the services and functions
- The subject of the contract is permission to use Dairy Ration and the services and functions specified in the scope of performance. Dairy Ration enables, depending on the specific set-up, the following functions among others:
- feed management;
- the creation and management of compound feed and rations;
- sharing of rations and compound feed with other users;
- with consent, the receipt of offers from compound feed producers.
- Dairy Ration is not required to ensure quality/characteristics over and above the thus defined functionality.
- Individual extensions or other modifications of Dairy Ration for the user shall require a separate agreement.
- The provision of a guarantee for particular properties of Dairy Ration must be confirmed in writing by byhead solutions in order to be effective.
- The services provided by byhead solutions are limited to the provision of Dairy Ration and the related information transfer. However, byhead solutions shall not be a party with respect to the contractual relationships between the users, for example under existing or initiated contracts. byhead solutions shall thus not be subject to any warranty, liability or responsibility for information exchanged among the respective contract parties and users or the success of the contracts existing between them. Any responsibility of byhead solutions due to its own culpability remains reserved under these GTC.
- The user shall also be responsible for ensuring that it fulfills the necessary minimum requirements in terms of hardware and software for the use of Dairy Ration.
3. Restriction of the service to the management and calculation functions
- The scope of Dairy Ration’s services does not include verifying or ensuring the correctness of rations or the correctness of the feed values or other specified, provided or calculated values. Insofar as feed values, other feed properties or nutritional requirements are made available to the user, they are deemed to be proposals and aids and do not constitute feed recommendations. The user is responsible for carefully verifying whether Dairy Ration and the created rations meet its requirements or obtaining expert advice in that respect.
- The services provided by byhead solutions do not include any legal verification or legal consulting or the fulfillment of statutory disclosure obligations of the user (for example mandatory information for feed customers).
4. Restriction of the paid services to companies
- The paid service provided by Dairy Ration is directed exclusively at companies and not at consumers. Consumers are prohibited from taking advantage of the paid services.
- A company is any natural or legal person or a partnership with legal capacity which when concluding a legal transaction acts in performance of its commercial or independent professional activities. This includes, in particular, dairy farms, feed producers, freelance consultants, other business entities, cooperatives and authorities.
- Consumers are any natural persons who conclude a legal transaction for their own private purposes. Private purposes are purposes which can be ascribed neither to their commercial nor independent professional activities (for example students, amateur breeders).
- By making use of paid services, users declare that they are a company or entrepreneur and not a consumer.
- The provider reserves the right to verify whether the user is a consumer (for example verification of the address data). Users also undertake to submit appropriate supporting evidence at the request of byhead solutions, for example a copy of a business registration.
5. Registration and the conclusion of the contract
- The contractual relationship between the user and byhead solutions can arise either through the conclusion of an individual agreement or through online registration.
- In the case of online registration, the contractual relationship arises between the user and byhead solutions upon the completion of the registration process, which requires confirmation of the registration by byhead solutions. After the data is entered, a confirmation link is sent to the specified e-mail address within three days, with which the registration can be confirmed. Unconfirmed registrations are deleted after 30 days.
- Only legally competent users are permitted to register. Users being minors require the consent of their statutory representatives (usually the parents) to use Dairy Ration and must be at least 16 years of age.
- Consumers are not permitted to register as a company.
- Each user is only permitted to register once. Multiple registration of the same person is not permitted. The use of an access by several persons is also not permitted (for example, user/workstation licenses cannot be made available to other users). In the event of a violation of this requirement by users being companies, byhead solutions shall have the right to bill the users for the fees which would have been incurred by the users in the case of regular use plus the administration costs incurred in connection with the subsequent calculation.
- We reserve the right to limit the number of devices from which a user can work with Dairy Ration, in accordance with the modification rights under these GTC and the provisions of law, particularly on consumer protection.
- The user shall ensure that all data transferred by it regarding the person or company is accurate. The users are not permitted to pose as other persons or companies or otherwise engage in deceit regarding their identity.
- The user’s address and contact details must always be kept up to date. Any disadvantages that arise for the user due to incorrect information shall be borne by the user. Any disadvantages which arise for byhead solutions due to incorrect information shall be borne by the user if the incorrect information lies within their area of responsibility. The user is responsible for ensuring that the greatest possible care is exercised in the use of its access data and for taking every measure to ensure confidential, secure handling of the data and preventing its disclosure to third parties. The user shall be held responsible for the misuse of access data unless it can demonstrate and provide proof that this did not occur through its fault. The user must immediately inform byhead solutions if there is reason to believe that a third party has gained knowledge of access data and/or is misusing a user account.
- The contractual relationship with byhead solutions is not transferable to other persons or companies without its consent.
- No entitlement exists to registration. byhead solutions reserves the right to reject online registrations if objective reasons exist for doing so and in the case of companies without prior consultation and without giving reasons.
6. Remuneration and invoicing
- For consumers, the test version of Dairy Ration is available free of charge.
- Companies pay different fees depending on the scope of performance and according to the price overview and/or the individually made arrangements.
- In the case of paid ongoing services which have been used for a certain period of time, changes in the fees are permissible after the end of that period. The change shall be effective if byhead solutions does not receive a notice of extraordinary termination from the customer within two weeks from receipt by the user of the relevant change notice. byhead solutions shall advise the user along with the change notice of the time limit for objection and the consequences of failing to object.
- All prices should be understood as being exclusive, i.e. subject to the addition of VAT, unless they are marked otherwise.
- Payments made by the user shall be made through the payment methods accepted by byhead solutions, of which the user shall be separately notified.
- The time limit for byhead solutions to send pre-notifications to the user in connection with the SEPA direct debit procedure amounts to one day.
- Invoices may be provided to the user electronically. byhead solutions may send payment reminders to the user by electronic means.
- Unless stated otherwise, invoices shall be due for immediate payment.
- Fees shall be payable in advance for the respective settlement period.
- If a user being a company defaults on payments, byhead solutions shall have the right to refuse the performance of due services for the user and block the access to Dairy Ration until the default has been rectified, in which case byhead solutions shall notify the user of such blocking with advance notice generally amounting to seven business days so as to allow the user to rectify the default. The other statutory and contractual rights of byhead solutions due to payment default by the principal remain unaffected.
- Costs incurred as a result of a chargeback of a payment transaction due to lack of covering funds or due to the provision of incorrect data by the user or due to reminders being issued regarding due receivables shall be billed to the user. Only the costs actually directly incurred by byhead solutions (material costs and third-party fees, such as mailing costs or return debit fees) shall be charged. Instead, byhead solutions shall have the right, in the case of companies, to charge the flat amounts specified below on the basis of the actually incurred costs which are to be expected in the normal course of events: a) reminder fees shall be charged at a flat rate of €5.00; b) if the provider incurs expenses as a result of reverse transfers to the user due to overpaid fees, which did not arise at the provider’s instigation, €7.50 shall be charged for reverse transfers. The user shall have the right to provide proof that no or lower actual or estimated costs were incurred.
- In the event of the termination of paid services by the user before the end of the term of the contract or justified blocking of the account, the user shall have no entitlement to be refunded all or even a part of the fees.
- Setting off is only possible with claims already acknowledged by the other party or established by a court, unless they are claims to the main performance or claims for defects. A right of retention can only be asserted for claims that stem from the respective contract.
7. Responsibility for content and information
- byhead solutions is not responsible for the user’s content and does not adopt that content as its own.
- byhead solutions reserves the right not to publish content or to reverse its publication if there are specific indications that the content violates legal requirements, prohibitions of governmental authorities, third-party rights or common decency. However, byhead solutions is not obliged to verify the content in advance.
8. The user’s obligations
- The user warrants that the information provided by it to byhead solutions is accurate and its content is free from third-party rights and that both the content and its actions are legally permissible according to the current legal situation.
- Insofar as users can directly contact other users, this contact possibility must not be used for purposes of unsolicited advertising (“SPAM”) and the contacted users must not be otherwise inconvenienced.
- Users must fulfill the statutory disclosure obligations applicable to them.
- Because the integrity and functionality of Dairy Ration is of essential importance, sanctions shall be imposed on users if and insofar as specific indications arise for byhead solutions that users are violating provisions of law, third-party rights, common decency and/or these GTC.
- When selecting the sanction to be imposed, byhead solutions shall take into account the factual circumstances and justified interests of the affected user in the decision and shall also take into account, among other things, whether only non-culpable misconduct has occurred or if the violation was committed culpably. The following graduated sanctions are available to byhead solutions: a) partial or complete deletion of a user’s content, b) warning a user, c) restricting the use of byhead solutions, c) temporary blocking of a user, d) final blocking/termination of a user, possibly accompanied with a ban on entering the premises.
- The user shall indemnify byhead solutions against any claims that third parties may assert against byhead solutions due to a violation of their rights by the user.
- In this context, the user shall also have to bear the costs of any necessary legal defense, including lawyers’ fees and court costs in the statutory amount. Indemnification by the user shall not occur if is not responsible for the infringement of rights.
11. Use authorization
- byhead solutions advises the user that it may only use Dairy Ration for the individual contractual purposes.
- Furthermore, the user does not have the right, without the explicit written consent of byhead solutions, to rent out, lend, lease, sell, decompile or alter Dairy Ration or make it wholly or partially available to third parties in any technical form whatsoever or enable third parties to perform the above-mentioned acts, either for a fee or free of charge. The above prohibitions exist subject to mandatory statutory requirements. Sublicenses may not be granted.
- Paid or unpaid provision to third parties is not permitted.
- Users are only permitted to use Dairy Ration through the input masks and interfaces provided.
- Any acts which could impair the functionality of Dairy Ration, the software or the infrastructure are prohibited (for example scripts, robots or crawlers). In particular, overloading is prohibited which exceeds the regular intensity and frequency of use to be expected in the case of normal use of the services and interfaces (for example, software which due to technical defects continually generates unnecessary access).
12. Granting of usage rights by the user
- The user grants byhead solutions usage rights to its legally protected content such as are necessary for the contractually compliant provision of the contractual services by byhead solutions (for example, the right to duplicate user’s content for the purpose of storing it in the servers and other computers of byhead solutions and its hosting provider, create server backups or enable sharing of the content with other users). byhead solutions shall only exercise those rights in compliance with the contractual and statutory confidentiality and data protection requirements.
- The granting of the rights is not subject to any time limitation up until revocation by the user.
- The user must ensure before uploading and preparing content that it is entitled to the necessary usage rights to the content.
13. Further development
- The further development of Dairy Ration is a key component of byhead solutions’ service. Such further development includes adjustment in line with technical progress, taking into account the users’ requirements with regard to the use of the software and optimization thereof.
- byhead solutions is permitted, as part of such further development, to modify Dairy Ration and its subfunctions, without this constituting a defect, provided this is reasonable for the user and the achievement of the objective of the contract is not jeopardized as a result. In the case of users being consumers, this explicitly only applies if the change is to the user’s advantage, if the change serves the purpose of ensuring that the services provided are consistent with applicable laws, particularly if the applicable legal situation changes, if the change serves the purpose of allowing byhead solutions to fulfill mandatory court or official decisions, if the respective change is necessary to close existing security vulnerabilities or if the change is of a purely technical or procedural nature and has no significant effects for the user. Changes which only have an insignificant effect on the existing functions do not constitute service changes in this sense. This particularly applies for changes which are of a purely visual nature and mere alterations of the layout of functions.
14. Availability, disruptions and maintenance
- The right to use Dairy Ration exists within the limits of the state of the art of technology. Non-availability does not include restrictions of or downtime of Dairy Ration due to circumstances which do not lie within byhead solutions’ area of influence and responsibility (culpability of third parties, disruption of telecommunications lines, events of force majeure etc.).
- If the security of the software operation or the maintenance of the integrity of the software and the operation and integrity of the network are acutely jeopardized (for example through malware or attempts at unauthorized access), byhead solutions shall be permitted to temporarily restrict access to Dairy Ration and the scope of its functions as required. This particularly applies if users’ interests are jeopardized.
- byhead solutions shall have the right to block the user’s access in the event of serious breaches of the user’s obligations. Serious breaches are breaches which make maintaining the performance of the contract unreasonable for byhead solutions because rights and interests of byhead solutions, third parties or the users are jeopardized (for example, access by unauthorized persons, the introduction of malware).
- Users being companies must report disruptions to the availability of Dairy Ration to byhead solutions promptly and within 24 hours, insofar as the faults have been recognized by the user or should have been recognized by the principal. In the event of recognized faults or faults which the user should have recognized, availability shall be deemed to have been reduced from the submission of the fault report by the principal and only provided that a fault has actually occurred.
- byhead solutions is responsible for the components which are used for the operation of the software only up to the point where they meet the interfaces of byhead solutions’ computer centers with the public data networks. Impairments of data transmission in the software operation within the user’s IT systems or at telecommunications providers do not constitute a disruption. The interfaces are the handover point for byhead solutions’ SaaS services.
- Insofar as byhead solutions provides interfaces for Dairy Ration (also referred to as “API”) with which the user can access the software with the software of third-party providers, byhead solutions shall guarantee the proper functioning of the interfaces in accordance with the availability provisions set out in these GTC only insofar as such proper functioning lies within byhead solutions’ sphere of influence.
- In particular, no guarantee can be provided for the compatibility of the interfaces or the possibility of access, insofar as the defects lie in the software of the third-party provider.
- The same limitations apply if the principal links the software of third-parties with Dairy Ration via their interfaces.
- The warranty for the software is based on the provisions of rental law (software rental).
- byhead solutions shall rectify defects in the software and maintain the software at reasonable intervals. Errors in the software or impairments of data in the hosting which are documented and reproducible and result in the contractually compliant use of the software by the principal being significantly impaired shall be deemed to be defects. The principal must cooperate in the elimination of the defects to a reasonable extent and, in particular, carry out the necessary defect documentation and provide information.
- For users being companies, the commercial inspection and complaint obligations apply.
- Strict liability is excluded for defects which already existed upon the conclusion of the contract, if they were identified by the user or should have been identified by the user and, in the case of companies, failed to report them within 24 hours in both cases.
- The warranty is excluded if the principal has made changes to Dairy Ration without authorization from byhead solutions, unless the principal can provide proof that those changes had no effect on the defect.
- In the case of users being companies, claims related to defects shall expire under the laws on limitation periods in twelve months, unless the defect was fraudulently concealed.
17. Limitation of liability
- Without prejudice to the other statutory conditions of entitlement, the following exclusions and limitations of liability apply for byhead solutions’ liability for compensation for losses.
- byhead solutions shall be liable without limitation insofar as the losses resulted from willful misconduct or gross negligence.
- byhead solutions shall also be liable for breaches of key obligations due to minor negligence, the violation of which jeopardizes the achievement of the objective of the contract or for breaches of obligations whose fulfillment makes it possible to correctly perform the contract at all and upon whose fulfillment you generally rely. However, in such a situation byhead solutions shall only be liable for the foreseeable losses under a typical contract. byhead solutions shall not be liable for breaches due to minor negligence of obligations other than those specified in the above sentences.
- The above limitations of liability do not apply in the event of loss of human life or injury to the human body or health, for defects after a guarantee has been provided for the quality/characteristics of the product or in the case of fraudulently concealed defects. The liability under the German Product Liability Act (Produkthaftungsgesetz) remains unaffected.
- Where byhead solutions’ liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives and vicarious agents.
- byhead solutions is obliged to exercise the diligence typical in the industry. byhead solutions shall only be liable for loss of data in accordance with the above paragraphs if such loss could not have been avoided through appropriate backup measures on the part of the principal.
- byhead solutions shall not be liable for events of force majeure which prevent it from providing the services being the subject of the contract or only significantly impede or temporarily obstruct the correct performance of the contract. Events of force majeure include all circumstances which are independent of the will and control of the contract parties, such as war and other military conflicts, natural disasters or other serious and unforeseeable circumstances which are no fault of the parties. A circumstance shall only be deemed to be an event of force majeure if it occurred after the conclusion of the contract.
- The term of the contract and the notice periods for termination are based on the periods under the tariffs selected by the user or the individually made arrangements.
- Subject to an arrangement to the contrary, the term of the contract shall be automatically extended after it ends by the same period, provided that the contract has not been previously terminated with a notice period to be agreed or otherwise amounting to thirty days, effective as of the end date of the contract.
- The termination of free-of-charge services is possible for users of Dairy Ration at any time and for byhead solutions within a time limit of two weeks, but only in accordance with the applicable consumer rights.
- All notices of termination of the contract by companies must be in writing.
- The right to terminate the contract without notice for good cause remains unaffected for both parties. Good cause for termination by byhead solutions shall be deemed to exist, in particular, if the user commits serious breaches of obligation against the law or these GTC, if insolvency proceedings regarding the user’s assets are applied for or initiated or such initiation is refused due to a lack of assets or if byhead solutions discontinues its activities.
- As a rule, a notice of extraordinary termination must be preceded by a warning. The warning can be omitted if it is unreasonable for the party in question. This is the case, in particular, if the contract partner’s conduct indicates that despite a warning further misconduct is to be expected.
- byhead solutions reserves the right to verify the user’s identity to a reasonable extent, for example by sending a confirmation e-mail to the e-mail address specified in the user’s administration area.
- In the event of termination, the user shall be responsible for backing up its data before the end of the contract. byhead solutions shall have the right to irretrievably delete all data of the principal stored during the term of the contract.
19. Data protection
- The protection of user data is a top priority for byhead solutions and the provision of information on and the surrender of user data to third parties will be prevented insofar as this is legally possible.
- If the user transfers personal data of third parties to Dairy Ration, the services being the subject of the contract will be provided by byhead solutions as contract data processing exclusively on behalf of the user in compliance with the legal requirements provided for in Article 11 of the German Data Protection Act (Bundesdatenschutzgesetz). The user shall continue to be responsible as the data controller for compliance with the provisions of the German Data Protection Act, the other relevant data protection regulations and professional regulations. A transfer of functions to byhead solutions is not agreed.
20. Confidentiality and secrecy
- The parties undertake to handle confidentially, all confidential information of which they gain knowledge during the performance of this contract and to only use it for contractually agreed purposes.
- Confidential information in the meaning of this provision is any information, documents or data which is marked as such or which should be considered confidential due to its nature. byhead solutions undertakes to only provide employees and other vicarious agents who are entrusted with the provision of the services under this contract with access to confidential information of the principal. The parties shall not submit any protective rights registrations for confidential information of the other party.
- If a public body demands confidential information as defined above, the party in question must be informed to that effect promptly and before the surrender of the information to the public body, unless mandatory statutory regulations or orders of governmental authorities are opposed to this.
- The rights and obligations under this section on confidentiality shall not be affected by the termination of this contract. Upon the termination of this contract, both parties shall return or destroy confidential information of the other party according to that party’s choice, unless it has been properly consumed.
21. Amendments to these GTC
- byhead solutions reserves the right to amend these GTC at any time with effect for the future, unless the amendment is unreasonable for the users. In the case of users being consumers, byhead solutions has the right to amend these GTC in the following cases:
- if the amendment serves the purpose of ensuring that these GTC are consistent with applicable laws, particularly if the prevailing legal situation changes;
- if the amendment by byhead solutions serves the purpose of fulfilling mandatory court or official decisions;
- if entirely new services of byhead solutions and/or service elements or technical or organizational processes of byhead solutions require a description in these GTC;
- if the amendment is only advantageous for the users.
- In such a situation, byhead solutions shall send the amended GTC to the e-mail address recorded by the user with byhead solutions at least four weeks before their effective date.
- The user shall be given four weeks before the effective date of the amendments to terminate the services if the amendments are disadvantageous for it.
- If the user fails to object to the new GTC within a time limit of four weeks from the receipt of the e-mail, the amended GTC shall be deemed to have been accepted by it. byhead solutions shall inform the user of the consequences of failing to object along with the change notice.
- The users can also agree to amended GTC through an explicit declaration of agreement.
22. Final provisions
- byhead solutions may send information and declarations relating to the contractual relationship with the user to the e-mail address recorded by the user in Dairy Ration. The user shall regularly access that e-mail address.
- The user is only permitted to transfer to third parties claims against byhead solutions based on these GTC or on the contracts based on them after obtaining byhead solutions’ consent.
- In the case of companies, the laws of the Federal Republic of Germany apply insofar as no mandatory provisions of law are opposed to this.
- The place of performance and place of jurisdiction is Hamburg, insofar as the user is a trader, a legal person under public law or a public special fund or the user has no general place of jurisdiction in the Federal Republic of Germany. byhead solutions’ reserves the right to select a different permissible place of jurisdiction.