The provider offers its customers a free mobile app (hereinafter referred to as “LeadHound”) in the Apple App store under itunes.apple.com/de/app/leadhound/id1083406634&mt=8. The customer receives access to the back end, configuration manager, and customer-specific database for customized use of the LeadHound app computer program (program) with LeadHound Business api keys, if it purchases “Business” licenses. These licenses include a non-exclusive and non-transferable right to use programs under the following conditions (charged usage for a limited time).
2. Installing LeadHound
LeadHound is installed by downloading the current release of the app in the apple app store from the internet using an iPad or iPhone. LeadHound is then ready for immediate use. However, access to the back end, configuration manager, and customer-specific database and export are only available after the access key has been successfully activated. An Apple App store account is required to install the LeadHound app.
3. Delivery/provision/conditions of use/training
(1) The program was developed for use on certain data processing systems (iPhone and/or iPad) and for collaboration with other specific programs via individual interfaces. The customer’s system must fulfill certain requirements for its specific data processing unit. These are: an iPad or iPhone with at least iOS 8.x or newer, as well as at least one table calculation program that can interpret the XLSX and CSV formats.
(2) The program will be installed on the customer’s device through uploading on certain data processing units designated by it (iPad and/or iPhone) or installed by the customer itself.
(3) If access necessary to use all components of the program fails during transmission, or if it is deleted accidentally after being received by the customer, the provider shall provide a replacement. All previously provided access details will then be blocked.
(4) Access shall be delivered / provided within 24 h after the order is confirmed.
(5) If the provider exceeds the agreed delivery / provision time by more than 72 h for reasons for which it is responsible, the provider shall charge a percentage of the fee for each further day of delay based on the fee invoiced to the customer for the program affected by the delay under Sec. 6. The flat-rate claim for damage indicated in clause 1 does not have to be paid if the provider can show that no damage was suffered, or that damages were lower.
(6) Updates for new framework conditions, such as new versions of iOS and/or new versions of the iPad or iPhone, will be provided to the customer within an appropriate time period after they become available as part of program updates and new release publications. If the customer takes advantage of the offer, these shall be delivered as indicated in para. (1). Para. (2) shall apply accordingly.
(7) Employees can discuss the program during telephone-based training sessions, and explanations will be provided using case studies. Employee questions will be answered by telephone, and employees will practice initial operating processes and learn about others’ experiences.
(8) Case studies will be developed alongside opinion leaders who have already been trained, then presented to other employees. The best course of action is to tailor customer processes to process leads before the training and establish these processes in a handbook so LeadHound can be integrated efficiently.
4. Scope of use
(1) The customer is entitled to use the provided program only on the iPads and/or iPhones it has designated as “specified data processing units.”
(2) “Use” in the sense of this agreement is any continuous or temporary duplication (copying) in whole or in part through loading, displaying, running, transmitting (exporting recorded data) or saving the program for the purpose of executing it and processing the databases included therein on the specified data processing units (iPads and/or iPhones). The authorization for use is restricted to saving and display for devices connected to the specified data processing units (such as input and output devices). Use also includes carrying out the above actions for the purpose of monitoring and inspection. The contractual program may not be copied as a whole outside of the contractual purpose, but only the data it contains.
(3) In all other cases, use of the program on any data processing unit except the designated specified units shall require written approval of the provider.
(4) Contractual use includes preparing backup copies of data included in the program. If the delivered program is damaged during loading or operation, the customer may receive a short-term replacement copy upon request for installation directly on the specified data processing unit (iPad and/or iPhone) if the damage cannot be corrected within 24 hours on business days and 48 hours on weekends. The data processing unit (iPad and/or iPhone) will not be supplied by the provider.
(5) The customer is entitled to link the transferred program to other computer programs following coordination with the provider. Interfaces are installed and set up upon request and offer. Decompiling the program code in another display format is prohibited.
(6) The customer is not entitled to assign the rights described herein to third parties or grant third parties any relevant rights of use.
5. Protecting the program
(1) Apart from the rights of use granted under 1. and 2, the provider shall retain all rights to the program, including to all copies or partial copies created by the customer. This shall not affect the customer's ownership of machine-readable recording devices, data storage devices, and data processing equipment.
(2) The customer hereby undertakes to retain protective marks such as copyright marks and other reserved rights in the program without change, and to include such marks in all other full or partial copies of machine-readable programs prepared by the customer without change.
(3) The customer shall keep a record of the contractually created copies or partial copies of machine-readable programs it creates and store this record at a secure location. It shall provide information on the record upon request.
(4) The customer hereby undertakes to not make the program accessible to third parties, either in its original format or in the form of full or partial copies, without the express written consent of the provider. This also applies if the customer's company is sold or liquidated in whole or in part. Third parties shall not include employees of the customer or others, as long as they comply with the customer’s contractual use of the program.
(5) before destroying, selling, or otherwise transferring machine-readable storage media or data processing devices on which data are saved, the customer shall delete the saved program in full.
(6) The customer has the right to use any new version of the program provided to it in a contractual manner, or to waive such use. If it decides to use the program, the provider shall update it through uploads to the specified data processing unit.
(1) The customer shall pay a monthly base rent for the transfer, maintenance, and activation of access data as follows:
LeadHound Business 2.990,00 €
(2) The annually licensing fee includes developments and work related to programming and installing bug fixes, as well as updates in released areas. These bug fixes and updates will be provided as releases in the Apple App store after they are completed by the provider. Customers with active access will be informed of this by the Apple app store and requested to update the program.
(3) Licensing fees do not include correcting technical problems with LeadHound related to user errors. They also do not include handling user queries related to the program beyond the information in the telephone training and available FAQ and tutorials. The webstie www.leadhound.de, the provider’s hotline +49 731 552 141 90, and e-mail support at email@example.com are available for user queries.
(4) Separately defined one-time costs shall be charged based on the current pricing list and hourly rates for individual customer-specific program expansions (feature requests) and for installation on iPhones and/or iPads by the provider, follow-up training, and/or other services such as branding and survey preparation. These one-time costs are due for payment immediately. Costs shall be invoiced based on the hours worked for partial periods.
(5) Ongoing licensing costs shall be due for payment at the start of each agreed invoicing period (annually) and shall vary based on the customer's number of users. All costs are payable within 15 days after receipt of the invoice without discounts. VAT is charged separately.
(6) If the customer falls into default of payment, the provider shall charge statutory default interest amounting to 9% above the current base interest rate APR of the European Central Bank. If the provider can prove that it has incurred further default damages, it may also assert said damages.
7. Liability for material and legal defects
(3) Liability for defects that already existed when the agreement was concluded independent of liability are excluded.
(4) The customer shall support the provider in identifying and correcting defects, and shall promptly grant it access to documents describing the specific circumstances under which the defect occurred.
8. Exclusion of Liability
(1) In case of slightly negligent breaches of cardinal contractual obligations, the violation of which endanger execution of the agreement, our liability and the liability of our agents shall be restricted to the average, foreseeable, typical, and direct damages associated with this type of contract.
(2) We and our agents are not liable in case of slightly negligent breaches of non-cardinal contractual obligations, the violation of which do not endanger the execution of the agreement.
(3) The above restrictions of liability do not apply to customer claims under product liability law. Furthermore, the restrictions of liability shall not apply to bodily injury and damage to health or loss of life suffered by the customer for which we are responsible.
(4) The provider shall be liable for carrying out due diligence typical for the industry. In determining whether the provider is liable, the fact that software cannot be created entirely free from technical errors must be taken into consideration.
(5) The provider is only liable for lost data and its restoration if such loss should have been unavoidable through reasonable data backup measures (specifications on regular exports of recorded data) by the customer.
9. Customer service
(2) The customer is obligated to prepare error documents according to relevant information in the usage documentation. After the provider receives the error documents, it shall provide central customer service by telephone or shall send information or provide documents on how to correct or circumvent the error or corrected program sections. The error shall be corrected via an online connection (internet) and by publishing a new release in the Apple App store. The customer guarantees it shall do everything necessary to ensure access (for instance accessing the Apple App store with the specified devices, etc.).
(3) Customer services such as training customer employees, adjusting programs to specific customer conditions, or other programming services, shall require the conclusion of a separate agreement for this purpose.
(4) Customer services related to non-contractual use of the program are charged, and costs are based on applicable hourly rates.
10. Violations of protected rights
(1) The provider shall indemnify the customer against all third party claims related to violations of protected rights committed by the provider at its own cost. The customer shall inform the provider promptly of any claims asserted by third parties. If it does not inform the provider promptly of asserted claims, this indemnification claim shall be forfeited.
(2) In case of violations of protected rights, the provider – apart from any claims for damages by the customer – may a) make changes respecting the customer’s interests following coordination with it and ensuring that the violation of protected rights no longer exists or b) obtain the necessary rights of use for the customer, at its own discretion and at its own cost.
11. Contractual term, termination, return and deletion of the program
(1) The license(s) shall be transferred for an initial fixed term of 12 months. This term shall be extended automatically by 12 months if the agreement is not terminated in writing 3 months before it expires.
(2) Termination for just cause without notice shall remain unaffected.
(3) Once termination becomes effective, access to the agreement shall be eliminated, independent of its time and reason. Access to the back end, configuration manager, and customer-specific database shall no longer be available after the end of the agreement. The customer is obligated to make backup copies of all databases under 4. para. 4 in a suitable manner before the agreement expires.
(4) The customer is obligated to return the original copy of the program to the provider, as well as all copies and partial copies. This also applies to modified or changed versions of the program. If a program is saved on machine-readable storage media belonging to the customer, the record must be deleted in full instead of return.
(5) Contracts purchased through the Apple App Store or other service providers must be terminated under the applicable terms and conditions of each service provider. The exact procedure is described on the website of the Apple App Store or the other service provider.
The provider may change the ongoing service fees and invoicing periods at the earliest 12 months after the contract begins. The customer shall receive a written notification of this three months in advance. If the customer does not object within 4 weeks after receiving the notification, the amendment shall be considered approved.
13. Expiration, ancillary agreements, severability clause
(1) Claims related to a violation of the provisions under 4. “Scope of use” and 5. “Program protection” shall expire six months after they come into being; all other claims under this agreement shall expire three years after they come into being unless shorter statutory expiration terms apply.
(2) Amendments or supplements to this agreement shall require the written form.
(3) The place of jurisdiction for disputes arising from this agreement is Ulm.