myconvento – General Terms & Conditions
1. Offer and Supply
These General Terms and Conditions shall apply to all offers, supplies and services relating to the myconvento product of Convento GmbH, hereafter referred to as Convento. By placing an order or otherwise requesting to purchase products from Convento and upon subsequent activation by us, the customer shall be deemed to have accepted these Terms and Conditions. Their current version may be viewed online at any time on the myconvento homepage at www.myconvento.com.Any deviation from these Terms and Conditions of Purchase shall not be valid unless confirmed in writing by us.
Unless otherwise agreed, written offers shall be binding within thirty days from delivery. Oral agreements shall not be effective unless confirmed in writing. Claims for compensatory damages due to non-performance or default in delivery may be asserted only where the same are based on gross negligence or malice aforethought committed by us or our vicarious agents.
myconvento shall be available immediately after ordering and subsequent activation by us. Billing will be based on the start date of the subscription indicated in the order and the scope of services ordered.
When ordering services, we agree to offer a date within 45 days from receipt of the order. In return, we shall be entitled to bill the contracted services after 45 days, regardless of completed performance. We reserve the right to partial performance and bill accordingly.
2. Commencement and Term of the Subscription Contract
A subscription begins with a 15-day start-up phase. During this time, myconvento may be used free of charge, although with certain restrictions (see description under “Details and Prices” at www.myconvento.com). These Terms and Conditions also apply to the start-up phase. During this time, users are not permitted to export any data that they have not previously imported (particularly, external research data—cf. Section 6). At the end of the 15-day period, the contract status will automatically change to paid subscription unless it is changed earlier by the licensee or the start-up phase is terminated.
The contract will then automatically be extended to the end of the calendar year and thereafter to the end of the following calendar year, unless it is terminated in writing by either party at least three months before the end of the year. The period of notice for subsequent years shall also be three months to the end of the year.
3. Expansion or Reduction of User Licenses
User companies may change the scope of their licenses on the website at myconvento.com. Reductions in scope may be made at the end of a year by giving three months’ notice, expansions shall be possible at any time. The subscription will then be revised on the basis of the price list valid at the time.
4. Support Services
We will provide the following services during the term of the contract:
a. Software Maintenance
Adaptation and extension of the web platform and its corresponding software. Remedy of defects where feasible at reasonable expense. Defects must be reported in writing without undue delay after their discovery and must be reproducible or otherwise traceable by us. On request, the user shall assist us in the diagnostic process.
b. Software Upgrades
Continuous extension of features, with simplification and improvement of the user interface.
c. User Support
Chat and email support as well as a telephone hotline service. Telephone support is generally billed separately. Support services shall be available during our normal business hours (Monday to Friday, 08:00 to 18:00, except on public holidays in North Rhine-Westphalia). Separate support agreements outside these hours may be arranged. We reserve the right to deny access to the hotline to inexperienced users with simple problems and may suggest training instead.
5. Property Rights and Copyrights
Convento shall grant the user company a non-transferable, non-exclusive right to use myconvento. All data and work results created in myconvento may be used freely and be copied as required.
In exercising the above right of use, the user shall not acquire ownership in myconvento. However, the specific customer data shall remain the property of the user throughout the contract term.
6. Use of Research Data
a. Limitations of the license for the use of external research data
Convento cooperates with several data suppliers, giving users the opportunity to access their data directly from myconvento for use in research and mailings. Use of these data shall require a valid myconvento subscription. The data may not be sold or passed on to third parties either in full or in extracts. Advertising and PR agencies and consultants shall be permitted to show the data to clients for the purpose of coordinating advertising and PR campaigns. Any improper use shall be prohibited without the written consent of the relevant data supplier. Use of the data shall be governed by German law. The user specifically agrees to use email addresses exclusively to send media-relevant information without any advertising material, to ensure relevance of its own communications to the recipients, not to infringe on any copyrights and personal rights, and not to violate the competition law.
External data are the property of their respective suppliers and are protected by copyright laws and other relevant national legislation. Convento is careful to point out that users shall be liable for any damage resulting from copyright infringements.
c. Expiration of the license
Upon expiration of the subscription term, the license for continued use of the research data available in myconvento shall also terminate; this does not affect any user-owned data. The license restrictions and copyrights referenced in Sections 5, 6 and 8 of these General Terms and Conditions shall survive the end of the contract and remain in full force.
No responsibility shall be accepted for the accuracy and completeness of external data. Convento reserves the right to make necessary changes to the data selection and data structure provided those changes do not adversely affect the users.
7. Warranty of Convento GmbH
Convento explicitly points out that it is technically impossible to create software and IT systems completely without faults. Therefore, Convento shall warrant only the technical usability of the myconvento platform for the specified purpose. myconvento is free of defects that would completely or considerably reduce the value or suitability for its contractually stipulated use. Unless otherwise expressly stated, the information included in the product description does not constitute any guarantee or warranty.
myconvento covers all essential and typical IT-related public relations tasks as well as corporate and financial communications. However, unless otherwise agreed in writing, Convento does not make any warranty of fitness for the operational specifics of the user company.
The precise processing time (performance) of features and services in myconvento depends on the user’s internet access capacity, the computer and its efficiency. While it cannot therefore be guaranteed, every user may test it during the free 15-day start-up phase.
The user company shall notify Convento immediately in writing of any defects found and, where possible, keep a detailed record of the fault. Failure to notify shall constitute acceptance of both myconvento and the defect.
In the event of justified complaints, Convento undertakes to remedy and repair the defects within four weeks. If repair is not feasible or successful, the user shall be entitled to reduce the subscription fee by up to 50% provided it can prove a decrease in value as a result of the defect. Convento shall not be liable for any defects due to unauthorized changes or modifications to the system effected by the user.
On-site services provided on request (e.g. training courses) are typically charged per call as quoted on the basis of day rates. It is therefore irrelevant how many hours specifically the instructor spends on site.
8. Scope of License and Flat User Fee
The flat user fee to be paid by the user company shall be a fixed monthly or annual amount based primarily on the number of registered and, therefore, licensed myconvento users (Named User Licensing). This is in addition to other charges such as research data, mailing service or storage capacity.
All users of a user company may work at different locations, even across national borders, or access myconvento from different workstations, but only once at a time.
Companies that collaborate or belong to the same group may share use of a subscription provided that a service contract exists between them (example: press office and agency work together on one system) or one company holds at least 50% of the shares in the other company. In this case, all users share a database. The leading company acts as licensee and invoice recipient.
Convento reserves the right to change the flat user fee at the beginning of a calendar year. In such case, user companies shall be notified of the change in writing by June 30th of the previous year.
9. Additional Services at Extra Cost
Convento offers the following optional services at extra cost:
- Individual add-ons as requested
- User workshops and consulting services
- Qualified integration of existing, external contacts into the myconvento database
- Maintenance of mailing list
Our additional services shall be charged per call at the day rates applicable upon confirmation of the order. Where services are provided at the customer, Convento shall charge extra for travel, accommodation, if any, and expenses.
10. User Agreement, Performance Promise, Liability
a. Scope of Services
myconvento is an SAAS (software as a service) solution. This means that the user company is supplied with the software as well as the underlying database and processing power from a computer center in the Federal Republic of Germany. Internet access shall be provided using a conventional or standard browser.
Convento shall equip its users with the estimated processing power for a typical application (server). It is the responsibility of the user to operate the necessary client computer or mobile terminal device, and to provide online connection to the myconvento Internet platform.
Convento reserves the right to make reasonable changes to the scope of services at any time and to discontinue services which no longer comply with current standards.
b. Data Protection and Data Security
Our separate “Data Protection Policy of Convento GmbH” is available at https://myconvento.com. In addition, Convento offers the conclusion of a data processing contract (“Vertrag zur Auftragsdatenverarbeitung” = ADV) in accordance with Article 28 (3) GDPR.
c. E-Mail Dispatch
Convento offers highly sophisticated solutions for bulk emailing (example: SPF/MX, DKIM method). Several other features and functions contribute to the high standard of services provided by the myconvento mailing system (email scheduler, tamper-proof mailing archive, HTML templates, success statistics, bounced mail handling, blacklisting, etc.).
d. Service Level Agreement/Availability
Convento offers a 99.5% uptime guarantee for its myconvento, averaged over a period of 365 days. This does not include scheduled service windows.
In the event of faults or outages that significantly affect or prevent the use of myconvento, Convento shall endeavor to resolve the issue promptly, and not later than within 24 hours (repair and recovery time). In individual cases, Convento shall have the right to reasonably extend this period. Where repair and recovery is not possible within a further grace period of 24 hours granted by the user, the user shall have the right to terminate the contract for cause or to payment of damages in accordance with the terms of this contract. The user shall have no further claims against Convento.
Occasionally, Convento requires a service window for Standard Hosting user companies to perform maintenance or install updates. The work will typically be carried out on a Friday between 18:00 and 22:00 hours. During this time, access to the platform may be limited or unavailable. Users will usually be notified in writing at least 48 hours in advance.
For user companies with a Hosted Appliance, Convento may also schedule other service windows at its discretion, such as Wednesdays from 18:00 hours. Convento shall always endeavor to schedule a service window outside normal business hours to minimize disruption to its customers’ business operations. Again, user companies will usually be notified of the work at least 48 hours in advance.
e. Liability of Convento arising from the Operation of myconvento
Except for the breach of fundamental contract obligations (primary obligations), Convento shall only be liable for willful or grossly negligent conduct on the part of its employees or vicarious agents. This does not apply to damages arising from injury to life, limb or health. No liability is accepted for the services of parties that are not vicarious agents and are beyond the control of Convento.
In the event that Convento is prevented from rendering performance due to unforeseeable and – despite due diligence – inevitable circumstances such as force majeure, the period of rendering performance shall be extended by the duration of the hindrance plus a reasonable start-up period. Force majeure shall include, but not be limited to, war, internal unrest, industrial action, fire, flooding, and other natural disasters, as well as loss of power or data connectivity, traffic disruptions, etc.
The liability of Convento shall be limited to the cost of an annual subscription for the customer. The customer shall be required to prove damages. Liability shall also be limited to one annual subscription where several acts or related factors combine to cause damage within a period of twelve calendar months.
Where Convento is responsible for the disruption or it takes more than 24 hours to resolve, the customer shall be entitled to a prorated reduction of the monthly basic price. Where it is the responsibility of the customer, Convento shall be entitled to charge the customer for the costs incurred in resolving the issue. The above provisions do not affect the liability of Convento for warranty commitments and under the provisions of the Product Liability Act. Where the liability of Convento is effectively excluded or limited, this shall also apply to the personal liability of Convento employees, other staff, bodies, representatives and vicarious agents.
Convento shall not be responsible for third-party content on the platform or on other websites. Inclusion in the service shall not imply approval, warranty, guarantee or representation by Convento GmbH.
Convento may remove news and data only from its own servers and websites. Convento does not guarantee any specific placement of press releases or a specific scope of circulation.
f. Obligations and Liability of the User Company
The use of myconvento requires a technically adequate terminal device with working Internet access. Users are aware that their personal login data (user ID and password) must be kept secret and may not be disclosed to other parties.
The user company shall ensure that its use of myconvento does not fundamentally change the system or impair availability of the service. It is required to notify Convento immediately of any faults or defects found and provide reasonable assistance in finding the fault or defect and its causes.
The users shall refrain from any attempts of gaining unauthorized access to third party data. In the event of breaching any of these obligations, their user company shall be required to pay a contractual penalty in the amount of EUR 2,500 for every unlawful act. Convento shall reserve the right to claim further damages.
In all other respects, the user company, as well as Convento, shall be liable only for willful or grossly negligent conduct on the part of their employees or vicarious agents. This does not apply to damage arising from injury to life, limb or health.
Any liability of the user company shall be limited to the cost of an annual subscription, provided that the damage is limited to its own account and does not affect other user companies. Convento shall be required to prove damages.
Liability shall also be limited to one annual subscription where several acts or related factors combine to cause damage within a period of twelve calendar months and the damage is limited to the account of the user company.
g. Obligations of the User Company Concerning the Dissemination of Information
User companies submitting content for dissemination via myconvento shall automatically grant Convento the right to distribute, announce, reproduce, reformat and archive this information. The users shall be responsible for any content and its accuracy.
Our users shall guarantee that posted and disseminated content is free from third-party rights. In particular, content must not infringe on license rights, copying rights, copyrights, trademarks or other intellectual property. Personal rights and the privacy of persons must be protected. Disseminated content may not be defamatory in nature or contain viruses, scripts, macros or other executable programs. Nor may they include links to scripts, macros or programs. In general, content must not violate any applicable laws and regulations.
Users shall be responsible and liable to third parties for the unlawful dissemination of content. The user company agrees to fully indemnify and hold harmless Convento in connection with and from all claims and demands made by a third party against Convento as a result of the unlawful use and to reimburse Convento for all negligently caused, verifiable legal defense costs and any payment of damages, irrespective of the legal basis.
All submitted news and information must comply with the guidelines established by the GDPR and the German Public Relations Council DRPR (Code of Conduct, Code of Lisbon). Each item of news shall be posted with reference to a contact person including email address. News that do not comply with this standard may be rejected by Convento. In such case, Convento may also remove any press release from the website and reject its dissemination. In such case, the user company shall not have the right to rescission or reduction in price.
Convento reserves the right to suspend the service for the purpose of making necessary technical changes. Convento shall endeavor to minimize disruption to the performance of services and shall duly notify the user company in writing. No claims for damages of the user company shall be accepted insofar as the user company can reasonably be expected to tolerate the temporary suspension of performance.
Billing of the flat user fee shall commence when the user company changes to paid subscription after the free 15-day start-up phase. Convento shall then charge for the period up to the end of the calendar year. Annual subscriptions shall be settled in full at the start of a year. In individual cases, Convento may agree to the payment of quarterly instalments.
If the user company adds licenses or other services during the subscription period, the additional flat user fee shall be prorated to the end of the year. Services that are related to usage (such as webinars, data volumes, mailings) shall be billed at the end of a month for the previous month. Training and other individual services shall be charged on completion.
Existing customers with subscriptions commencing before May 25, 2018 and subject to terms and conditions providing for quarterly billing shall continue to be billed quarterly up to December 31, 2018. Annual billing shall then apply from 2019.
All bills shall be payable in full within 14 days from the date of invoice. Unless objected to in writing within two weeks from its receipt, the bill shall be deemed accepted by the user company. Bills may not be set off against disputed or legally unenforceable claims. In the event of default, Convento shall have the right to charge default interest at the statutory rate.
12. Formation of an ADV contract
Art. 28 (3) of the EU General Data Protection Regulation requires the processing of personal data by a processor to be governed by a contract (hereafter, DP contract). The latest version of this DP contract is made available by Convento on the website at www.myconvento.com and shall be formed without the signatures of the myconvento customer and Convento GmbH. It only requires a valid order of a myconvento subscription and acceptance of the current General Terms and Conditions of Convento GmbH. Deviations from this standard contract may be agreed for a charge as part of the “Premium Contracting” offer.
13. Ordinary Termination
This contract may be terminated by either party at any time during the 15-day start-up phase and thereafter by giving three months’ notice before the end of the calendar year. Otherwise, it shall be extended by one year at a time up to the end of the following calendar year. Notice of termination may be given in myconvento by clicking on the “Terminate” button or in writing. Timely receipt shall be determined by the date of receipt of the notice or the date on which the button was activated.
14. Extraordinary Termination by Convento
Convento shall have the right to terminate the contract without notice and to discontinue all services if the user company fails to comply with fundamental contractual obligations or uses myconvento for improper or unlawful purposes.
15. Amendment to the General Terms and Conditions
Convento shall have the right to change or amend these General Terms and Conditions by giving one month’s notice. Our user companies will be notified in writing of any changes or amendments and may object to them within one month from receipt of the notification. If no objection to the notified new terms and conditions is raised within this time, the new terms and conditions shall come into force. Otherwise, the previous terms and conditions shall continue to apply to these user companies. These General Terms and Conditions shall also apply to all future business relationships, even if the parties have not explicitly agreed to them again.
16. Final Provisions
Oral side arrangements shall be deemed not to have been concluded. All changes and amendments to the contract shall be required in writing. This shall also apply to the waiver of written form. Should any individual provision or any part of any provision of the contract be or become illegal, void or unenforceable, the validity of the remaining provisions hereof shall in no way be affected. In such case, the parties hereto agree to replace the void and/or unenforceable provision or provisions by relative provisions coming as close as possible to the economic sense and purpose of this contract. This agreement and the entire legal relationship between the contracting parties shall be subject to the laws of the Federal Republic of Germany.
In case of dispute, the user company shall agree to the engagement of a mediator to be appointed by the Chamber of Industry and Commerce for the Central Lower Rhine region (IHK Mittlerer Niederrhein). The cost of the mediator shall be borne equally by the parties. Should mediation fail to bring about a solution within one week, either side may take legal action. The venue for any claims arising from the user agreement shall be Düsseldorf.
as of Mai 25th, 2018