Separate Contractual Conditions and GTCs
- does not acquire ownership of the AZ reference data
- may only use the data within their own company
- may not pass on or sell the data to third parties, be that in full or in part, in the original version or a copy, or in modified
form. This is also not permitted for testing purposes. Dies ist auch nicht für Testzwecke erlaubt.
- may not use the data for any other purpose
- may not copy the data
- may not publish the data (e.g. on the internet)
General Terms and Conditions of
AZ Direct GmbH
for “AZ Reference Data” products
AZ Direct GmbH
Carl-Bertelsmann-Straße 161 S
Local court Gütersloh HRB 1631
Managing Director: Dirk Kemmerer, Oliver Reinke, Carsten Diepenbrock
Valid from 26/03/2022
AZ Direct GmbH (hereinafter “AZ”) provides the following services: delivery of “AZ Reference Data” products exclusively according to the following General Terms and Conditions, which the customer accepts by placing the order or by receiving the service. These also apply for all future business with the customer, in the version effective at the time the order is placed. The application of any divergent and supplementary general terms and conditions by the customer is excluded, even if AZ does not expressly opt out of them.
In these General Terms and Conditions, the term “AZ Reference Data” refers to: so-called “hard” information about the spatial envi-ronment (e.g.: street directory, building directory, coordinates) and statistical information (e.g. purchasing power in a street segment, building age)
1. Conclusion of contract
1.1 AZ’s offerings are non-binding. An order signed by the customer is a binding offer, which AZ can accept within two weeks from receipt by AZ by means of an order confirmation by letter or email, or by performing the service. A contract is concluded between the parties when AZ issues the order confirmation or when AZ carries out the order, and the contract complies exclusively with the content of the order confirmation (if issued) and with these General Terms and Conditions. To be effective, verbal arrangements or commitments must be confirmed in writing.
1.2 In cases where the performance of the services agreed between the two parties involves the use of third-party data that has not been licensed by AZ at the time the contract is concluded, the contract between AZ and the customer is subject to the condition precedent of the third-party’s consent to the respective usage.
2. Scope of services
2.1 The description of services and the scope of those services, if not outlined in the contract, are specified in these General Terms and Conditions. This includes, in particular, the following service:
• Data provision: Provision of a/several data file(s) generated by AZ containing AZ Reference Data (from own research and/or licensed AZ data and/or open data) to the customer for their use in accordance with clause 2.4 of these General Terms and Con-ditions.
2.2 AZ retains all the property rights/copyrights or related rights and/or usage rights to the AZ Reference Data generated by AZ and made available to the customer, unless otherwise agreed in the contract or in these General Terms and Conditions.
2.3 Open-data information is included in some “AZ Reference Data” products. In these cases, the reference data supplied is produced and updated using our own sources/information, data from suppliers and from open-data sources. The following licensing/publication infor-mation is hereby provided and must also be passed on to the customer when the raw data is passed on: © OpenStreetMap contributors: https://www.openstreetmap.org/copyright ; “© Öster-reichisches Adressregister (Austrian Address Registry), current effective date; STATISTIK AUSTRIA (Statistics Austria); Statistik Austria — data.statistik.gv.at. Where open-data sources are used, the property rights/copyrights or related rights remain with the respective owners. Swiss reference data: Since data from “Die Schweizerische Post AG” is used, it is necessary to register at https://account.post.ch/ before use. Details are provided in the respective product descriptions, offers, contracts or order forms.
2.4 The AZ Reference Data supplied may only be used within the scope agreed in the contract and for the purpose agreed in the contract. Insofar as the license agreement does not contain any deviating provision, the AZ Reference Data supplied by AZ to the customer may only be used for the customer’s own purposes (no provision of services), i.e. the customer is not authorized to transfer or sell the AZ Reference Data to third parties in full or in part, be that the original or a copy. The customer bears responsibility for ensuring the legal permissibility of their use of the AZ Reference Data. After the agreed use/once the contract comes to an end, the AZ Reference Data must be destroyed/deleted in full without delay; written confir-mation that this has been done must be provided to AZ without delay upon request. Exceptions: any explicitly divergent contractual agreements, for example where permanent use has been granted. The application, use or exploitation of the AZ Reference Data for purposes other than those laid out in the contract or these general Terms and Conditions is not permitted. In particular, the customer is not authorized to use, reproduce or publish (e.g. online) the AZ Reference Data or excerpts from it in any other way in its raw form, or to make it available to third parties for testing purposes.
2.5 AZ is entitled to check compliance with the above usage re-strictions at any time through the use of control addresses and/or control data.
2.6 AZ regularly updates databases at the intervals common in the industry. Beyond that, AZ does not assume any liability for the up-to-dateness of the AZ Reference Data.
2.7 Insofar as the customer is a businessperson, a corporate body under public law or a public-law special fund, and culpably violates their obligations under this clause 2, AZ is entitled, without prejudice to the assertion of further rights, to demand – for each infringement – a contractual penalty amounting to ten times the value of the fee for the order from which the relevant reference data comes. In cases of ongoing license fees, the contractual penalty amounts to ten times the annual license fee.
Evidence of use of a control address and/or control file in violation of the contract is sufficient as evidence of use of reference data in violation of the contract.
3. Data quality and quantity deviations in the reference data
3.1 The reference databases provided by AZ are prepared on the basis of statistical evaluations of data content and on the basis of information issued by third parties. Furthermore, the reference data that is made available is subject to a constant process of change (e.g. new buildings, name changes). AZ edits the data in all con-science and to the best of its knowledge. As a result, the AZ Reference Data provided to the customer – despite being regularly updated by AZ – may not always be completely correct and error-free. A maximum error rate of 5% in the AZ Reference Data supplied cannot be ruled out. Below this limit, the AZ Reference Data cannot be said to be defective within the meaning of clause 7.
3.2 Because AZ’s address lists are subject to constant change for the reasons listed in the previous provision clause 3.1, AZ strives to adapt the AZ Reference Data to reflect these changes promptly. Accordingly, this may result in a positive or negative deviation in the quantity of the AZ Reference Data between the quantity of AZ Reference Data stated in the order confirmation and the quantity of AZ Reference Data provided when the order is actually carried out. AZ is entitled to provide 10% more or less AZ Reference Data than is stated in the order without consulting with the customer. Below this limit, the addresses cannot be said to be deficient within the meaning of clause 7. Positive or negative deviations in quantity
will be taken into account in the remuneration, unless this is not compatible with the nature of the contract (comparison across several address lists, etc.).'
4. Delivery times and deadlines
4.1 The reference data is delivered as agreed in the contract.
4.2 Unforeseeable and unavoidable force majeure events that are outside of AZ’s control and for which AZ is not responsible, such as war, pandemics, terrorist attacks, natural disasters, fire, sabotage, official decrees or labor disputes, release AZ, for their duration, from the duty to deliver or to perform the service in good time. In this case, the deadlines agreed are extended by the duration of the disruption. AZ will inform the customer of the occurrence of the disruption in an appropriate manner. If it is impossible to predict when the disruption will end or if it lasts longer than three months, each party is entitled to terminate the contract on exceptional grounds or to withdraw from the contract.
4.3 If AZ’s delivery or performance of the service is delayed, the customer is only entitled to withdraw from the contract if AZ is responsible for the delay and an appropriate deadline set by the customer for delivery or performance has elapsed without success.
4.4 In cases of delays performing the service for which the customer is responsible, resulting for example from subsequent change requests or lateness providing required information, delivery can be postponed beyond the delay period. In this case, AZ is not obligated to prioritize the performance of the services that have been according-ly delayed.
5.1 The AZ Reference Data is delivered exclusively by electronic channels (internet, etc.). The risk of accidental loss is transferred to the customer once the AZ Reference Data has been sent.
5.2 The standard method for transferring the reference data is the electronic method, the cost of which is already included in the conditions. All other alternatives must be ordered in writing in advance, and a surcharge applies.
6. Prices, terms of payment
6.1 If the contractual parties have not agreed on a specific price, the price is determined in accordance with the AZ pricelist valid at the time the contract is concluded.
6.2 If the order was concluded on the basis of a certain volume of addresses, the customer is obligated to report any exceedance of the reported volume of addresses to AZ without delay. In this case, the prices of the higher address volume come into effect, depending on the time of the exceedance.
6.3 All prices quoted by AZ are exclusive of the applicable statutory value added tax.
6.4 Unless agreed otherwise, AZ invoices become due for payment upon receipt by the customer.
6.5 If the customer defaults on payment, AZ is entitled to demand default interest of 9% p.a. above the base rate. Furthermore, AZ is also entitled, for another legal reason, to demand higher interest rates or to assert claims for other damages.
6.6 If the customer defaults on payment or if, after the conclusion of the contract, AZ identifies a risk of culpably caused lack of solvency on the customer’s part, AZ is entitled to withhold further services and to invoice all the other services already performed.
6.7 If an application is made to begin insolvency proceedings against the customer, AZ is entitled to withhold all further services, to invoice all services already performed and to make the performance of additional services dependent on advance payment of the remunera-tion due for those services.
6.8 The customer is not entitled to withhold payment due to counter-claims or to offset with counterclaims, unless the counterclaims are uncontested or have been determined by a court of law.
7. Rights of the customer in case of deficiencies/defects, inspection obligation
7.1 AZ does not offer the customer a guarantee of the quality of the services or deliveries, unless otherwise stated in these General Terms and Conditions.
7.2 The information included in catalogues, pricelists and other informational material provided to the customer by AZ are not to be understood as guarantees for a specific quality of the service or delivery to be performed.
7.3 The rights of the customer in cases of deficiencies in the AZ Reference Data provided require the customer to inform AZ of obvious defects in writing without delay, and within 14 calendar days of the delivery or handover at the latest. The customer must notify AZ of any concealed defects in writing without delay once they have been discovered. In doing so, the customer must provide a concrete description of the form/appearance of the defect with reference to any error messages that may have appeared.
7.4 With any notification of defects, AZ is entitled to examine the relevant AZ Reference Data. The customer must grant AZ the necessary time and opportunity to do this.
7.5 AZ will remedy deficiencies at no cost to the customer, either – at its own choice – by remedying the defect or by supplying a replace-ment AZ Reference Data that has been newly produced, in full or in part (together “rectification”). The customer will grant AZ the neces-sary time and opportunity to do this. If the rectification is not successful, if the customer finds the rectification unacceptable or if AZ has refused to carry out the rectification due to exces-sive/disproportionate costs, the customer can choose, in accordance with the statutory regulations, to withdraw from the contract, to reduce the purchase price, or to demand compensation (or if applica-ble reimbursement of their expenses). The exception to this are divergent contractual agreements, for example a “one-off” purchase of the reference data.
7.6 The rights of the customer in case of deficiencies lapse where the defects are attributable to reasons brought about by the customer.
7.7 AZ assumes the materials/shipping/work costs, and all other expenses, incurred for the purpose of rectification.
7.8 The period of limitation for the rights of the customer in case of defects is 12 months from delivery or from handover of the AZ Reference Data to the customer. The statutory periods of limitation still apply for compensation claims by the customer arising from reasons other than deficiencies in the service or delivery, and they still apply in terms of the customer’s rights relating to maliciously concealed or deliberately caused deficiencies/defects.
8. Compensation and limitation of liability
8.1 AZ has unlimited liability for intent and gross negligence.
8.2 In cases of slight negligence, AZ is liable only in cases of violations of cardinal duties. Cardinal duties are duties whose fulfilment make it possible to carry out the contract properly in the first place and the observance of which the contractual party can expect and rely on. In these cases, AZ’s liability is limited to foresee-able, typical and direct damages. AZ is not liable for slightly negligent breaches of non-material
obligations arising from the contractual relationship with the customer.
8.3 The above limitations of liability do not apply in cases of mandato-ry legal liability (in particular under the product liability act), or if a guarantee is given, or in case of injury to life, body or health caused by AZ.
8.4 The customer must take appropriate measures to prevent and mitigate damage. In particular, they must ensure that they have also saved the AZ Reference Data provided by AZ in some other way/place.
9. Third-party rights
If the proprietary rights of reproduction and rights of use of third parties are violated in the course of processing the AZ Reference Data that is made available to the customer, and if a third party then makes a claim against AZ due to the alleged violation of those third party rights (in particular rights of exploitation protected by copyright), the customer shall indemnify AZ from these claims in full upon the initial request and reimburse AZ the costs of any legal defense in full.
10. Data protection provisions/warnings
AZ wishes to point out to the customer that the AZ Reference Data may only be used within the framework set out in the data protection regulations, in particular the General Data Protection Regulation. The customer is responsible for complying with these regulations when using the AZ Reference Data.
11. General provisions
11.1 Changes and additions to the contract and/or these General Terms and Conditions, as well as ancillary agreements, must be made in writing. This also applies to any changes to this written form requirement.
11.2 If individual provisions in these General Terms and Conditions are invalid, this does not affect the validity of the rest of the provi-sions. In such cases, the parties must replace the invalid provision with a valid provision that comes as close as possible to reflecting the legal and business purpose of the invalid provision.
11.3 If the customer is a businessperson, a corporate body under public law or a public-law special fund, the exclusive place of jurisdiction for all disputes arising from the contractual relationship is Gütersloh. This also applies if the customer does not have a general place of jurisdiction in the Federal Republic of Germany or if they have moved their place of habitual residence abroad after the conclusion of the contract. However, AZ is entitled to file an action against the customer in any other legal place of jurisdiction.
11.4 The law of the Federal Republic of Germany shall apply.