These Terms and Conditions (“ToS“) apply for all Contracts (“Contracts“) of ARTEM Technologie AG (“Licensor“) with entrepreneurs within the meaning of section 14 German Civil Code (BGB) (“Customer“) for the provision of the software “Declarant’s Core” (“Software“) as Software as a Service (“SaaS“). Consumers as defined in section 13 German Civil Code (BGB) are not offered the conclusion of a contract pursuant to these ToS.
These ToS are integral parts of the Contract between the Licensor and the Customer. Other terms and conditions, in particular those of the Customer, do not apply.
For the conclusion of the Contract, the Customer needs to create an account on the Licensor’s website by filling out the CBAM Liability estimation form in a proper and complete manner (“Registration“). The Customer may not use its private email address but only its business email address for the Registration.
The Licensor uses the so-called double opt-in procedure for the conclusion of the Contract. That means a Contract between the Licensor and the Customer is only concluded when:
Bots and other automated systems are neither authorized to complete the Registration nor to use the Software. In case bots or other automated systems have been used to execute or complete the Registration, no Contract between the Licensor and the Customer is concluded.
The Licensor will provide the Software as Software as a Service to the Customer for the term of the Contract in accordance with the provisions set out in these ToS.
The Licensor may determine and modify the functionalities, performance, and technical requirements of the Software at its sole discretion. The Customer has no claim to the maintenance of specific functionalities or performance characteristics.
The Software shall be provided exclusively in machine-readable form (object code). The source code is not subject matter of the contract and will not be delivered.
The Customer is aware that the Software including any results, in particular emissions reports, created based on the Software, may rely on information and data submitted to the Software by the Customer as well as information and data of third parties, e.g. operators or precursors (manufacturers of a prior product) under the EU’s Carbon Border Adjustment Mechanism (CBAM). The Licensor does not have control over such information and data and therefore cannot ensure the accuracy or completeness of such information and data, as well as the results, in particular emissions reports, created based on the Software.
The Customer is aware that any estimates regarding liability under the CBAM via the Software are provided in good faith and are only to be used by the Customer for guidance and estimation purposes. The Licensor cannot ensure accuracy with regard to such estimates, in particular as such estimates are subject to on-going legislative and regulatory amendments.
The Customer is aware that the emissions reports or CBAM liability estimations created via the Software rely upon the Customer supplying accurate information and data. Therefore, the Licensor does not warrant or guarantee that the emissions reports created via the Software will pass verification by any third party. For avoidance of doubt: The Licensor does not have any obligation regarding the submission of the emissions reports, in particular the Licensor is not obliged to comply with any deadlines to submit information and provide verified emissions reports under the CBAM legislation. Such obligations solely lie in the Customer’s responsibility.
The Licensor is entitled to use sub-contractors for the provision of its services without the Customer’s consent.
The Customer has the option for an upgrade to the software “Declarant’s Pro”. For this purpose, the Customer may contact the Licensor for negotiation and conclusion of a separate agreement for the provision of Declarant’s Pro.
The Licensor will grant the Customer the non-exclusive, non-sublicensable, non-transferable right, limited in time to the term of this ToS, to use the Software including any updates in accordance with the ToS and the relevant Contract for its own use within the scope of its business operations.
Without the permission of the Licensor, the Customer is not entitled to transfer the Software to third parties (e.g. sell or lease the Software) or otherwise enable third parties to use the Software. Using the Software in the name or for the account of a third party who is not the contractual partner of the Licensor is also considered unauthorized use of the Software. This also applies to companies affiliated with the Customer. It is irrelevant here whether the third party pays the Customer a fee for use or not.
The Customer is not entitled to make changes to the Software. Statutory rights according to sections 69d and 69e German Copyright Act (UrhG) remain unaffected. The Customer is entitled to exercise its rights only according to section 69e German Copyright Act if the information necessary for this is not made available by the Licensor within a reasonable period of time upon the Customer’s request.
The Customer bears the sole responsibility for a sufficient internet connection to be able to use the Software.
The Customer is required to protect the access rights as well as identification and authentication information assigned to it against access by third parties and not to pass them on to unauthorized persons. The Customer will inform the Licensor without delay if there are indications that unauthorized third parties know the access rights and identification and authentication information assigned to it.
The Customer will not submit or upload any data, information, or other content (“Content“) to the Software that violates applicable law, infringes the rights of third parties or is infected with viruses or malware. In particular, the Customer is responsible for ensuring that it has sufficient copyright for the use of any Content in the Software.
The Customer warrants and guarantees that all Content submitted to the Software via the Customer’s account are accurate. The Customer also warrants that the Customer owns all necessary rights to the Content submitted or uploaded to the Software by the Customer.
The Customer grants the Licensor the right to reproduce the data to be stored by the Licensor under this ToS and the relevant Contract to the extent necessary to provide the services owed under this ToS and the relevant Contract. The Licensor is also entitled to keep the data in a backup computer centre. To eliminate disruptions, the Licensor is also entitled to make changes to the structure of the data or the data format.
The Licensor is entitled to suspend the Customer’s access to the Software completely or partially as well as temporarily or permanently if the Customer breaches its obligations under (2), (3) or in case of security incidents. The Licensor will inform the Customer of this by email. When access is suspended, the Customer’s right to use the Software ends for the duration of the suspension. The Licensor will take account of the legitimate interests of the Customer when deciding whether to suspend access, especially if there are indications that the Customer was not responsible for a breach. The Licensor will reactivate access as soon as the reason for the suspension ceases to exist.
The Licensor is not liable for any loss of Content due to a violation of (3) by the Customer. The Customer will indemnify the Licensor against all expenses and costs arising from any violation of (3).
Any errors or defects that occur are to be documented by the Customer by competent employees in text form – in the case of telephone communication subsequently – to the best of their ability in a comprehensible manner, stating the more detailed circumstances of their occurrence, their effects and – insofar as the Customer can make statements in this regard – the possible causes, and are to be reported to the Licensor immediately after their discovery.
The Customer will indemnify the Licensor against all claims of third parties, expenses and costs resulting from a violation of the obligations under this clause § 5. The Licensor will notify the Customer of such claims, thus giving the Customer, to the extent legally possible and reasonable, the opportunity to defend itself against the claim asserted. The Customer will provide the Licensor with all information available to it on the facts which form the basis of the claim without delay. This will not affect any further compensation claims asserted by the Licensor.
The Customer is obliged to notify the Licensor without undue delay if the upload or submission of a report created based on the Software is not successful due to an error in connection with the XML format. The notification shall be sent to the Licensor via email: support_CBAM@artem.earth.
The provision of the Software as SaaS by the Licensor is free of charge.
Nothing in this ToS will limit or exclude the Licensor’s liability: (a) in the event of intentional and grossly negligent damage; (b) in the event of injury to life, body or health; (c) under the provisions of the German Product Liability Act (Produkthaftungsgesetz).
The Software is provided on an “as is” basis. The Licensor does not provide a warranty of any kind, any special, incidental, explicit or implied warranty, including but not limited to the implied warranties of merchantability and/or fitness for a particular purpose. Subject to section (1) above, the Licensor shall not be liable for any defects, errors, or shortcomings in the Software and SaaS as well as damages whatsoever arising from the use of or inability to use the Software and/or SaaS.
The above liability restrictions also apply accordingly in favour of the Licensor’s vicarious agents (Erfüllungsgehilfe).
The Contracts are concluded for an indefinite time.
The Contracts may be terminated by the Customer at any time with 30 days’ notice.
The Licensor may terminate the Contract at any time with immediate effect.
The Parties’ right to terminate without notice for good cause remains unaffected.
30 days after termination of the Contract, the Licensor shall irretrievably delete all data of the Customer remaining on its servers, unless the Customer has notified the Licensor in writing within this period that the data is to be returned to the Customer.
The Contract will end automatically as soon as the Licensor and the Customer conclude a separate agreement for the provision of Declarant’s Pro.
The Parties undertake to maintain strict confidentiality vis-à-vis third parties and/or not to disclose to third parties any information which they obtain from the other Party through the use of the Software or which they are able to view, as well as any other information marked as confidential. In particular, the Customer shall store all information received from the Licensor in such a way that unauthorised persons cannot gain access to it. The Parties shall take appropriate confidentiality measures with regard to the confidential information. They will only make the confidential information available to employees on a need-to-know basis. The Customer shall impose a corresponding duty of confidentiality on its employees.
The duty of confidentiality pursuant to § 9 (1) shall apply for two (2) years following the date of expiration of the Contract. The duty of secrecy pursuant to § 9 (1) shall not apply:
The receiving Party must prove the existence of one of the above exceptions.
The Customer undertakes to comply with the applicable provisions of data protection law and to impose compliance with these provisions on its employees.
The Parties agree that the Licensor does not process personal data on behalf of the Customer in context of the Contract. However, should it become necessary for the Licensor and the Customer to enter into additional agreements regarding the protection of personal data (e.g. data processing agreement in accordance with Art. 28 GDPR), the Parties shall enter into such an agreement.
Both Parties are permitted to name the other Party as a reference contractual partner vis-à-vis third parties and to use the logo of the other Party in this context.
The Parties shall not be liable to the other Party in respect of delays in performance resulting from force majeure, namely circumstances beyond their respective control.
The Customer only has the right to offset and exercise a right of retention if its counterclaim is (a) either undisputed or has been ruled final and absolute by a court of law, or (b) where such claim has been asserted through a court the claim is ready for a decision, or (c) where such claim is synallagmatic to the principal claim.
The Customer is not entitled to assign or transfer rights or claims arising from the Contracts to third parties without the Licensor’s prior written consent.
The Licensor reserves the right to modify the Software, in particular within the scope of updates and releases, to adapt it to the state of the art, to optimise it, in particular to improve its user-friendliness, to correct errors, to update it or – if necessary – for licensing reasons.
The Licensor also reserves the right to amend these ToS at any time in the event of changes in the legal situation, court rulings or market conditions, provided that such amendments do not result in a restructuring of the contractual structure.
Amendments and supplements to this ToS must be made in writing in order to be effective, and this requirement is also met by electronic form (§ 126a BGB). This shall also apply to any amendment of this written form clause.
This ToS and its interpretation shall be governed by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. The exclusive place of jurisdiction for all disputes concerning rights and obligations arising from or in connection with the Contract, including its effectiveness, is Berlin.
If any provision(s) of these ToS are or become invalid or unenforceable, this will not affect the validity of the other provisions of these ToS. The Parties will replace the invalid or unenforceable provision with a provision which is enforceable and practicable under statute and in economic terms reflects as closely as possible the essence and purpose of the invalid or unenforceable provision. Should these ToS be incomplete, the parties will conclude an agreement with the content they would have agreed upon had they been aware of the omission when concluding these ToS.
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