Date: December, 25th, 2024

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§ 1 In General

(1) These General Terms and Conditions shall apply exclusively and only to a natural person or legal entity or partnership with legal capacity that is acting in the exercise of its commercial or independent professional activity when concluding the contract (entrepreneur). The terms and conditions of the provider shall apply exclusively; terms and conditions of the User that conflict with or deviate from these terms and conditions shall not be recognized unless the provider has expressly agreed to their validity in writing.

 

(2) The user shall be notified of any changes to these terms and conditions in writing, by e-mail. If the user does not object to an amendment within a period of four weeks after receipt of the notification, the new terms and conditions shall be deemed accepted by the user. However, if the user objects after the preceding sentence, the contract shall continue to apply unchanged under the previous terms and conditions. In the event of an amendment to the Terms and Conditions, the User shall be informed separately of the right to object and the legal consequences of his refusal.

 

§ 2 Subject matter and Scope

(1) Subject matter of these Software as a Service (SaaS) Terms and Conditions is the granting of the right of online use, via the Internet, of software as well as the storage of customer data by Isert & Klüber GbR, Birkenweg 28, 36157 Ebersburg (furthermore named “ConGra”). The provider offers registered users the use of the web application MoistureManager (https://moisturemanager.congra.info). Via this application, ConGra provides users with a digital service that supports land management. The Provider shall make the contractual services available to the User for temporary use by means of remote access via the Internet. For this purpose, the Provider operates the service on a server which the user can access via an Internet connection. The functional scope of the individual service is described under the respective product.

 

(2) The Terms of Use cover the access to MoistureManager and online use of respective services.

(3) The Provider is entitled to change the Service (user interface, etc.) if and to the extent that the fulfilment of the purpose of the contract concluded with the User is not significantly compromised thereby.

(4) The provider may provide the User with instructions for use in the form of a download under the heading “Terms of Use”. The user is obliged to follow the instructions given there on consuming the offered services.

 

§ 3 Registration

(1) The use of MoistureManager requires the registration of the customer as a user. The user is obliged to provide the data requested during registration correctly and completely.

(2) By registering the user agrees to these terms of use. Through this confirmation, ConGra and the user enter into contract of use. Registration alone does not entail any financial obligations for the user. Costs arise only for the user when one of the services provided are used.

(3) The user must keep his access code and password protected from access by third parties. Actions and legal transactions carried out via the user account of a user are attributed to the user and the user is liable for them. This does not apply if the user can prove that he was not responsible for the misuse of his user data. If there are indications that the access data have become known to third parties, ConGra must be informed immediately. In the event of a breach of the aforementioned obligations of the user, ConGra is entitled to block access to the user account without prior notice and to terminate the existing user contract with the user and the booked modules extraordinarily.

(4) If incorrect password entries are registered three times in succession under an access ID, the connection is interrupted. 

 

§ 4 Contracting 

(1) The modules that can be booked by the User and their functionalities are described in their current form on the MoistureManager website. The presentation of the individual modules/applications on the web portal does not constitute a legally binding offer to conclude a contract, but an invitation to order.

(2) By clicking on one of the contract options offered, the user is taken to the registration process for the service. By selecting the “register” option and subsequently entering contact and payment details, the user submits a binding offer to book the service. The process can be canceled by the user at any time before completion by closing the browser window or clicking on the “Cancel” button. Once registration and subscription has been completed and the payment details have been successfully checked, the system accepts this offer and a contract of use is concluded, whereby billing shall take place in accordance with § 10.

(3) The relevant language for the conclusion of the contract is exclusively Ger-man. Translations into other languages serve only to inform the user. In case of discrepancies between the German text and the translation, the German text shall prevail.

(4) The processing of the order and the transmission of all information required in connection with the conclusion of the contract is carried out by e-mail, in part automatically. The user must therefore ensure that the e-mail address provided to ConGra is correct, that the receipt of e-mails is technically guar-anteed and that it is not prevented by SPAM filters. The terms of contract are not stored by the provider.

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§ 5 Availability

(1) ConGra strives to ensure that the usability of MoistureManager is as uninterrupted as possible. However, due to technical problems (e.g. interruption of the power supply, hardware and software errors, technical problems with data transmission), but also due to maintenance work and updates, temporary restrictions or interruptions of access may occur.

The contents accessible via MoistureManager are accordingly provided with an availability of 95%, based on the calendar year. This does not constitute a guarantee or assurance by ConGra. Claims of the user due to a shortfall in availability are excluded.

The downtimes associated with software updates and maintenance work can be freely selected by the provider according to the respective technical and organizational requirements; however, the provider shall endeavour to select times during which the disruptions for the User are as low as possible. The transfer point is the router exit of the provider’s data center.

(2) The following periods shall not be included in the calculation of the total downtime:

• Periods of unavailability due to Internet outages or other circumstances beyond ConGra’s control, including, but not limited to, force majeure.

• Downtime that is the responsibility of the User; this includes, for example, periods of unavailability that are due to the User’s technical requirements for accessing the Applications not being available or being temporarily unavailable, such as disruptions to the User’s own hardware, telecommunications or delivery service or of Internet service provider, the availability of email domain servers or of mobile push notification provider.

 

§ 6 Data backups

(1) All user data will be backed up using standard backup mechanisms. A claim to archiving of commercial, tax or other legally relevant information does not arise from the data backup. The user is responsible for the storage of relevant documents and data. Liability on the part of ConGra for any loss of data is expressly excluded.

 

§ 7 Updates, Adjustments and Storage Space

(1) The technical basis of the services offered under MoistureManager for optimizing land management are various data sources. ConGra will update the data sources on the basis of various sources, in particular on the basis of satellite-based multispectral data.

(2) If and to the extent that the provision of updates or a new version leads to a change in the functionalities of the service, work processes of the User supported by the service and/or restrictions in the usability of previously generated data or a discontinuation of applications, ConGra will notify the User of this in text form with reasonable advance notice.

(3) The provider shall continuously develop the applications and the MoistureManager. Updates of the core product are generally made available to the User free of charge. However, in the event of significant updates and extensions of the functional scope (e.g. addition of modules) of the MoistureManager or the applications, the provider shall be entitled to classify these as a new product or upgrade and to make them available to the User for an additional fee. If the provider provides such upgrades and extensions free of charge, the User shall have no legal claim to their provision. The provider shall inform the User about the discontinuation of the free services.

(4) From the first use of the service by the User for the User’s application data, the provider shall maintain storage capacity in the size required for the purpose of the database.

(5) The User’s application data shall be backed up on the server regularly, at least once per calendar day. However, a claim to archiving of commercial, tax or other legally relevant information does not arise from this. The user is solely responsible for the storage of relevant documents and data.

 

§ 8 Technical Requirements

(1) For registration and use, the user requires an end device with a suitable up to date version of a web browser and an Internet connection that allows undisturbed access to the database and download of the content. The user is obliged to procure and maintain the hardware and connections to public telecommunications networks that he requires.

(2) The User is solely responsible for the creation and maintenance of the necessary technical requirements within the User’s area of responsibility for the contractual use of MoistureManager. The User bears the costs for setting up the online connection as well as the maintenance costs on the User’s side. ConGra accepts no liability for disruptions in data transmission caused by technical errors or configuration problems on the part of the user, nor for the security and continuity of data communication conducted via third-party communication networks.

(3) The user is responsible for the hardware and software he uses and for the communication channels he uses. The obligation to pay the usage fee shall remain unaffected by a failure of the hardware and software used by the user.

(4) The usability of the functions of the services as well as the necessary control of compliance with permissible usage limits require that the end devices of the user accept the cookies transmitted by the system of the provider and that these are not changed during the session and are not deleted. ConGra only uses so-called session cookies (also known as temporary cookies) on the website https://moisturemanager.congra.info that are technically absolutely necessary. Session cookies are only temporarily stored for the duration of the use of the website. The purpose of these cookies is to identify the customer’s computer during a visit of the website and to be able to determine the end of the visit. In order to use the full functionality of the website, it is necessary to allow the session cookies. The session cookies are deleted as soon as the customer ends the browser session.

The usability of MoistureManager requires that the terminal device used by the Client accepts the cookies transmitted by the portal and that they are neither modified nor deleted during the ongoing access to the MoistureManager portal. The Customer undertakes to ensure compliance with the aforementioned cooperation obligations (in particular through appropriate settings in his browser). If the user does not comply with this obligation for reasons for which he is responsible, the provider is not responsible for any resulting functional restrictions.

 

§ 9 Right of Use, Copyright, Copy Protection

(1) The User may use the services provided via MoistureManager exclusively within the scope of these Terms of Use. Any further use is only permitted if ConGra has given its prior consent to such use at least in text form.

All exclusive rights within the meaning of the German Copyright Act (UrhG), in particular all exclusive rights of the database producer within the meaning of §§ 4 para. 2, 87a ff. UrhG to the databases accessible via MoistureManager, the data contained therein and any data extracts are held by ConGra. The user acknowledges that the data made available are database works produced by ConGra within the meaning of §§ 4 para. 2, 87a para. 1 UrhG (Ger-man law). The user undertakes to refrain from all infringements of database rights. The use of MoistureManager does not entail the acquisition of rights to the content that can be accessed via MoistureManager, which goes beyond the granting of rights of use to this data in accordance with this clause.

(2) ConGra grants the User a non-exclusive and non-transferable right of use to the content that can be accessed via MoistureManager, limited in time to the term of a subscription. The User may only use MoistureManager for the purposes of its own operations or those of affiliated companies within the meaning of Section 15 (1) of the German Stock Corporation Act (AktG). Otherwise, all rights to the contents remain with ConGra. In particular, the user is not entitled to modify the content, to reproduce it or make it available to third parties, to forward it to third parties, to sell it, or to use it commercially in any other way. Copyright notices and brand names may not be changed or removed by the user.

ConGra reserves the right to check the scope of use of MoistureManager on a random basis and to permanently block the User’s access in the event of violations of these Terms of Use. ConGra is also entitled to take technical measures, including access blocks, to protect against unauthorized use. The user may not use any devices or other means which serve to circumvent the technical measures provided. In particular, he may not use web crawlers, spider programs, meta search engines or comparable technologies that automatically retrieve content from the database. Any further rights and claims of ConGra, in particular the right to extraordinary termination and the assertion of claims for damages, shall remain unaffected.

 

(3) The user shall indemnify the provider against all claims asserted by third parties against the provider due to the infringement of their rights or due to the infringement of rights based on content created or transmitted by the user using the applications. The User shall also bear the associated costs for the provider’s legal defense, including court costs and attorney’s fees. This indemnification shall not apply if the user is not responsible for the infringement. The assertion of further rights and claims of the provider, in particular the right to extraordinary termination for cause and claims for damages, shall remain unaffected.

 

§ 10 Fee and Terms of Payment

(1) Registration for the use of the database on the web portal is free of charge.

(2) Usage-based fees apply for the use of the service. The amount of the usage fees can be viewed on the booking page of the respective application

(3) The usage fees for a month, which are determined according to usage, are due on the first day of the following month. The available payment options are displayed when registering for the service. If payment is not made by the user within four weeks at the latest after ConGra has sent the invoice, ConGra is entitled to block access to the services until the invoice is settled by the user. All payment-related issues must be clarified directly with the payment service used by ConGra. The invoice data is stored for billing purposes. However, this does not result in a claim to archiving of the data. The user is responsible for the storage of documents relevant to the authorities. 

 

§ 11 Acquisition of user data, user database

(1) The provider is entitled to collect data on the following performance-related processes: Type of use, transmission content, transmission duration, personal data to identify the user. According to these rules, the provider may use personal data in particular if this is necessary for the establishment and arrangement of the contractual relationship (contractual basis) or for the fulfilment of the services or billing (usage data). Contractual basis is the full name of the user, his full address, e-mail address. Usage data are the features for identifying the user, information about the beginning and end as well as the scope of the respective use and information about the individual applications used by the user.

(2) The provider shall collect and use this data in compliance with the principles of data protection law.

(3) The provider is entitled to use and process usage data of ConGra products anonymously also for the purpose of product improvement or for statistical purposes, such as market research. In this context, ConGra is obliged to ensure that only anonymized usage data is used and that no master data of the customer is used, unless this is required for billing purposes or for the provision of advice/service/support to the end customer.

The focus for future developments in the field of precision farming is not only on satellite data, but also on the extended use of these satellite data. For this purpose, utilization data and their processing, for example with AI-based algorithms, are indispensable. For example, it could be possible to correlate certain satellite data with the humus content in the soil or expected future yields. In order to correctly select and interpret the satellite data, calibration and training data for the aforementioned algorithms are required. All these so-called “ground truth” data are anonymized by being stored in a separate database to the user data. The link between user and usage data is only temporary and only occurs when the user logs in by entering his password. Access to the customer’s usage data by ConGra therefore takes place exclusively without reference to the customer’s master data.

ConGra’s right to use this usage data in accordance with the above rules includes the right to pass it on to third parties with whom ConGra cooperates in connection with the provision of services.

 

§ 12 Warranty and Liability

(1) The provider shall remedy technical defects of the application within a reasonable period of time. The provider’s responsibility extends only to the transfer point of the systems operated by it to the Internet, but not to the User’s systems and data transmission lines beyond the transfer point. The warranty for defects existing at the time of the conclusion of the contract is excluded. Insignificant impairments of usability do not entitle the user to a reduction in price or to claim damages.

(2) MoistureManager and the modules that can be booked in this system represent a decision support system for the user with regard to the economic management and monitoring of land areas. The recommendations generated by this system, for example on harvest, are intended to support the user’s decisions. Each of these recommendations is to be checked by the respective user independently with regard to the concrete use situation, the land areas, weather conditions and other environmental conditions, which can also influence a decision. ConGra is not liable for the content of the recommendations made with MoistureManager being correct and leading to the best possible result. ConGra assumes no responsibility for the cultivation decisions of users. The recommendations are intended to facilitate the work of the user, but do not include any guarantee for optimal yields when applied. Liability claims against the provider, which are caused by incorrect handling, are excluded in principle, unless there is evidence of intentional or grossly negligent fault on the part of the provider.

(3) The services provided via MoistureManager are continuously checked by ConGra. Nevertheless, ConGra does not assume any warranty for the completeness, correctness and up-to-dateness. Any liability of ConGra in this context is excluded in accordance with the following regulations.

(4) ConGra is not liable for damages of any kind resulting from circumvention of password protection or technical protection devices by way of “hacking”. The provider and the User mutually agree that a binding assurance of the security of these protective devices is not possible due to the various possibilities of unauthorized third-party interventions on and via the Internet. In all other respects, the provider shall be liable without limitation for intent and gross negligence. For simple negligence, however, only in the case of breach of essential contractual obligations, the breach of which endangers the achievement of the purpose of the contract, or in the case of injury to life, limb, or health. For the simple negligent breach of an essential contractual obligation, the provider is liable at most in the amount of the typically foreseeable damage.

(5) The user is obliged to back up his data stored in the system with the functionalities offered there, i.e. to transfer it to a third-party backup medium under his control. ConGra’s liability for data loss is limited to the typical recovery effort that would have occurred even if data had been backed up regularly.

 

§ 13 Term of the Contract

(1) The contract for the use of the MoistureManager services can be terminated by the user at any time via the MoistureManager user interface.

(2) The contract for the use of the MoistureManager services may be terminated by the Provider at any time by informing the User of the termination of the contractual relationship in writing by e-mail. As soon as the provider has informed the user of the termination of the contractual relationship, the provider is entitled to deactivate the user's access to the application.

 

§ 14 Applicable Law

The contract shall be governed exclusively by German law under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and any conflict of laws provisions of German law that would lead to the application of a foreign law.

 

§ 15 Jurisdiction agreement

If the User is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction shall be the courts having jurisdiction for the registered office of the provider in Ebersburg.

 

§ 16 Final Provisions

(1) Amendments to these Terms of Use or declarations in accordance with these Terms of Use to the other party require a written declaration or an e-mail.

(2) Should any provision of these Terms of Use be invalid in whole or in part, this shall not affect the legal validity of the remaining provisions.

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Isert & Klüber GmbH "ConGra"

Birkenweg 28
36157 Ebersburg

+49 6656 505 7465

Info@congra.info