021 Software GmbH
Effective Date: 04.04.2022
021 Software GmbH, Taunusstraße 59-61, 55118 Mainz, Germany („Horizon“) offers a software-as-a-service solution for market demand validation (“Services”). These Terms of Service (“Terms”) govern the contractual relationship between Horizon and Customer about the use of the Services.
Use of the Services is only offered to entrepreneurs (“Unternehmer”) pursuant to Sec. 14 German Civil Code (“Bürgerliches Gesetzbuch”) and not to consumers. An entrepreneur is a natural or legal person or a partnership with a legal personality who or which, when entering a legal transaction, acts in exercise of his or it's trade, business, or profession.
When you create and register an account with us on our website (e.g. www.gethorizon.net, app.gethorizon.net) (“Website”) or by mutually executing one or more order forms with us which reference these Terms (“Order”) or by accessing or using the Services in any manner, you agree to be bound by these Terms (together with all “Orders”, the “Agreement”). If the Agreement has been concluded via our website, the text of the Agreement will be available to you in your account in English language.
Customer’s terms and conditions only become part of the Agreement if expressly agreed upon in written form.
The location of service provision is the output of the router of the data center used by Horizon for service delivery. Customer is responsible for ensuring their ability to receive the Services. In particular, the provision of necessary hard- and software by Horizon is not part of the Agreement.
Customer has no right to claim access to any source code.
Horizon provides the Services exclusively for Customer’s use as software-as-a-service via the internet; Customer is granted a simple, non-exclusive, non-transferable, non-sublicensable right to use limited in time to the duration of the Agreement. Horizon shall be responsible for operation and maintenance of the Services. Customer may use the Services for its own benefit and the benefit of its affiliated companies according to Sec. 15 et seq. German Stock Corporation Act (each an “Affiliate”). The Customer shall be entitled to grant it's and Affiliates’ employees, representatives, and contractor’s access to the Services (each a “User”).
Users may submit content or information to the Services, such as messages or files (“Customer Data”), and Customer may exclusively provide Horizon with instructions on what to do with it. For example, Customer may provision or deprovision access to the Services, enable or disable third-party integrations, manage permissions, retention and export settings, transfer or assign a team account, or consolidate a team account with other team accounts.
Any sub-leasing or other provision of the Services by Customer vis-à-vis third parties are subject to explicit prior approval by Horizon.
If Customer is accessing or making use of the Service on a trial basis or on an evaluation basis as identified in the corresponding Order (the “Trial”), Customer may use the Services during the Trial provided such use does not exceed the service levels set forth in the corresponding Order. The Trial may be subject to certain restrictions, limitations and differing terms, all as specified in the corresponding Order.
If Customer is accessing or making use of the Service on a no-fee basis (Basic Plan), Customer may use such Services provided such use does not exceed the Service levels specified on the Horizon website with respect to the Basic Plan. Customer acknowledges and agrees that the Basic Plan is provided on an “as-is” basis, and that it is provided without any support. Additionally, Customer acknowledges and agrees that Horizon may terminate the Limited Use at any time and for any reason or modify the applicable terms by publishing a notice on the Horizon website.
The Parties may agree on Horizon providing Professional Services to Customer , i.e. strategic advisory, consultancy and operational support for test setups and reporting (“Service Subscriptions”). Customer acknowledges that such Service Subscriptions are be subject to additional Fees as provided for under an applicable Order.Service Subscriptions can be either purchased on a time & material basis (“Pay as you go”; monthly invoicing based on timesheets) or via upfront payments for a 12 month subscription of Professional Services. If Customer purchases a 12 month subscription of Professional Services, Customer obtains a certain monthly amount of man-days for Professional Services, for the period of 12 months from the date of purchase. Any monthly amount of man-days for Professional Services can be transferred to any following month within the 12 month subscription term, but not in any month that is beyond the 12 month subscription term. Thereby, Customer acknowledges that any amount of man-day capacity purchased via an applicable Order expires after the 12 month subscription term.
Professional Services do not include the creation of any kind of product images by Horizon for Customer, such as, but not exclusively, 3D renderings of products or product ideas from Customer. If Horizon is providing the Customer with Professional Services, it will be detailed under an applicable Order. Purchases of any kind that Horizon needs to take to provide Customer with Professional Services and which are not included in the applicable Order for Professional Services, such as domains or rights of use for images, are subject on top of the additional Fees for Professional Services.
Horizon extends and improves the Services continuously.
Horizon may change the scope of the Service's functions at any time to an extent that is reasonable for the Customer. A change is in particular reasonable if it is required due to an important reason – e.g., as of disturbances in provision of services by sub-contractors or for security reasons – and the agreed characteristics, as well as the major obligations of Horizon, substantially remain unaffected Horizon will inform Customer about the changes at least four (4) weeks in advance via email, unless such changes relate to voluntary services or insignificant components of the Services.
Unless stipulated to the contrary in this section 3.8, all rights in data uploaded into or generated within the systems of Horizon (“Customer Data”) remain with the Customer.
Customer grants Horizon a limited, non-exclusive, royalty-free, non-transferable right and license to collect, process, store, modify, display, reproduce and to grant access to Customer Data and to the extent necessary to fulfill its obligations under this Agreement. Customer Data is and will remain the sole and exclusive property of Customer and all rights, title and interest in the same are reserved by Customer.
Derived Data is new and anonymous information generated through analysis and other processing of Customer Data and information generated through monitoring or other observation of Customer’s and User’s use of the Services and aggregated with data from other customers of Horizon (“Derived Data”). Derived Data does not contain Customer Data, Confidential Information, or any personal data under GDPR. During and after the term of the Agreement, Horizon may create, use, reproduce, display, modify, create derivative works of and otherwise exploit Derived Data for analysis, improving and providing the Services, and other purposes that might serve the development of the Services and other Horizon products. Horizon owns and retains all rights in Derived Data.
During the term of this Agreement, the Services allows the Customer to retrieve specific data in a machine-readable format at any time.
Customer may from time to time provide suggestions, comments, or other feedback to Horizon with respect to the Services (“Feedback”). Customer shall, and hereby does, grant to Horizon a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid license to use and exploit the Feedback for any purpose.
Horizon is entitled to make use of suitable subcontractors, in particular, but not conclusively, for rendering professional services. Horizon shall be liable for subcontractors used by it as for its own actions.
4.1 The Customer pays to Horizon the remuneration agreed upon conclusion of the Agreement. The remuneration may be specified in an Order or at Services interface “check-out”.
4.2 For clarity, in the event the parties agree to downgrading any subscriptions from a paid plan to a free plan, Customer will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term.
4.3 Unless agreed on explicitly, no advertisement budget for target group acquisition is included in the agreed remuneration and must be borne by the Customer.
4.4 Any travel costs approved by Customer in text form (including letter and email) are invoiced additionally.
4.5 If not agreed otherwise, remuneration applies monthly and net, excluding the applicable value added tax (VAT). No early payment discounts (“Skonto”) are granted.
4.6 Invoicing takes place at the beginning of each billing period agreed upon in advance. Invoiced fees are due 14 days after correct invoicing.
4.7 remuneration shall be given without deduction of any withholding taxes or other withholding taxes that are imposed by a foreign tax authority or other sovereign and/or are owed based on legal provisions ("Withholding Taxes"). If Customer must pay withholding taxes, Customer must nevertheless pay the full agreed-upon fee to Horizon. Horizon will provide Customer with appropriate support in the reimbursement of withholding tax; whereas Customer has to indemnify Horizon from any costs incurred.
5.1 Customer is obliged to keep access credentials safe and may only disclose these credentials to authorized Users. Customer shall oblige its Users to confidential handling of access credentials and immediately inform Horizon if there are any indications that access credentials become known to a non-authorized third party.
5.2 Customer is responsible for ensuring that it meets the system requirements for the operation of the Service, which are made available by Horizon upon request.
5.3 Customer is obliged to comply with all applicable legal provisions when using the Services, especially regarding copyright and data protection law. In the event Customer uses the Services to make third-party content (e.g., images, photographs, trademarks) accessible, Customer shall indemnify Horizon from any third-party claims asserted against Horizon about Customer’s infringement of their rights. Horizon will inform Customer immediately about third-party claims and will provide information and documents necessary for their defense upon request. Additionally, Horizon will either leave defense to Customer or carry out defense in consultation with Customer. Horizon will not acknowledge or agree or not agree upon facts that have not yet been proven regarding any third-party claims without prior consultation with Customer. These provisions apply respectively to contractual penalties as well as administrative or judicial fines, as far as Customer is responsible.
5.4 If Customer is using the Service “Incognito Testing”, Horizon will provide a legal entity of its own to be the publisher of the landing page, allowing the customer to test incognito, avoiding any implications for existing brands. However, Customer shall be responsible for the respective website to any third party. In particular, Customer shall indemnify and hold harmless Horizon for any costs and damages that are caused in relation with the content of such website. Further, Customer shall accept Horizon referring to Customer any third party approaching Horizon because of the website, and Customer shall be responsible for responding to such third parties.
5.5 Customer shall always comply with the applicable export and import control regulations and applicable sanctions laws that the parties or the Services may be subject to (“Export Control Laws”), including but not limited to the laws and regulations of the Federal Republic of Germany, the European Union, the United Kingdom, and the United States of America. Horizon is not obliged to perform any obligation under this Agreement to the extent that the performance of such obligation would breach Export Control Laws or expose Horizon to any risk of enforcement action, punitive or restrictive measures, or other adverse action under Export Control Laws.
Customer is responsible for the User’s use of the Services. Horizon is entitled to disable access to the Services of Customer or any User if
6.1.1. the Services are used in violation of section 5;
6.1.2 there are demonstrable indications that Customer’s access credentials were or are misused, or the access credentials were or are made available to an unauthorized third party or if access credentials are used by more than one natural person;
6.1.3. there are demonstrable indications that a third-party gains access to the Services provided to Customer in any other way;
6.1.4. there are demonstrable indications that Customer’s or User’s specific use of the Services threatens the security of the Services and/or other Customers and their data;
6.1.5 Horizon is obliged to disable Customer’s access for legal reasons or under a court or administrative order; or
6.1.6. Customer is in default with the agreed payment for more than four weeks.
7.1 Unless otherwise agreed, the Agreement has a minimum term of 12 months. The plans “Basic” and “Starter” do not have a minimum contract term.
7.2 Unless agreed otherwise, the Agreement shall automatically be extended by twelve-month intervals, respectively, if not terminated upon notice 30 days before the end of the then-current term by one of the parties.
7.3 Additionally, Horizon is entitled to terminate the Agreement without notice if Customer is in default with agreed-upon payment for more than six (6) weeks and if Horizon informed Customer of intended termination in written or text form at least two (2) weeks before the termination is supposed to become effective.
7.4 A Basic Plan or a Trial can be terminated without cause at any time.
7.5 If a paid plan is terminated by the Customer, it is turned into a Basic Plan.
7.6 The right of termination for good cause remains unaffected.
7.7 Termination notices are subject to the text form.
7.8 Upon termination of a Basic Plan, irrespective of its cause, Horizon will delete Customer Data. Horizon is entitled but not obliged to store Customer Data for security reasons beyond termination of the Agreement, particularly to protect Customer from inadvertent loss of data and for purposes of accounting, invoicing, documentation, or evidence. Additionally, Horizon is entitled to store data beyond the duration of the Agreement to the extent Horizon is obliged by law, especially under commercial or tax law, or by order of a court or authorities.
8.1. “Confidential Information” means the contractual contents and all information and attachment in any form (in particular written, oral or in electronic form) which the parties communicate to each other in the course of the performance of this Agreement. This also includes all documents, data carriers and other media created by each party as well as Customer Data.
8.2. The parties shall treat Confidential Information as strictly confidential and use it only for the purposes of performing the Agreement.
8.3. Any Confidential Information shall be kept secret by the receiving party, protected from access by third parties, and shall not be used for any other purpose other than specified in Section 7.2. Confidential Information shall only be disclosed to receiving party’s and its Affiliate’s employees or subcontractors if they must be aware of such information to fulfil the purpose of this Agreement. Employees shall be bound to confidentiality in an appropriate manner. Any third party is to be bound in an appropriate manner in accordance with this Section.
8.4. The confidentiality set above shall not apply to any information of which it can be proven that
8.4.1. it was known to the public already prior to the date on which it was received,
8.4.2. it became public through no fault of the party that is subject to the confidentiality,
8.4.3. it was already in the possession of the party receiving the Confidential Information at the time which it was forwarded,
8.4.4. it was already accessible to the party receiving the Confidential Information by an authorized third party that was not subject to confidentiality obligation,
8.4.5. it was passed to members of professional groups who are legally bound to confidentiality.
8.5. The disclosure of Confidential Information in compliance with a court order or an order from public authorities shall not be deemed a breach of Agreement. However, the respective party shall inform – to the extent permitted by law – the other party without undue delay and shall reasonably assist the other party in taking legal steps against such order.
8.6. The parties shall be obliged to implement and uphold reasonable technical and organizational measures regarding the security of the disclosing party’s Confidential Information, but in no case any measures less protecting than the measures used by the receiving party for its own Confidential Information. The disclosing party shall be entitled to review the technical and organizational measures of the receiving party on the receiving party’s premises.
8.7. The obligation to confidentiality according to this Section shall continue in force for the duration of another two (2) years after the end of the term of the Agreement.
9.1. Horizon is liable for defects when providing the Services exclusively according to the following provisions.
9.2. Defects are non-insignificant deviations from the contractually agreed scope of functions of the Services.
9.3. If the Services are faulty, Horizon will rectify or re-provide the Services upon Customer’s notice within a reasonable period. When using third-party software which Horizon licensed for the use by Customer, correction of faults is limited to the provision of updates, upgrades or patches. Rectification may also be made by providing instructions with which Customer is able to work around defects in a reasonable way using the Services.
9.4. Customer will notice Horizon about suspected or occurred defects immediately in text form.
9.5. In the event of a deficiency in title, Horizon may either retroactively license the concerned components of the Services or substitute them for equivalent components, to the extent this does not, or not materially, impair the functionalities of the Services.
9.6. Horizon indemnifies the Customer from and against any claims that third parties may assert vis-à-vis Customer based on the infringement of their rights by the Services provided by Horizon. Customer will inform Horizon without undue delay about any asserted third-party claims, and provide any information and documents required to defend such claims upon first request. Furthermore, Customer will either grant Horizon control of the defense or defend the claim in coordination with Horizon. In particular, Customer will not acknowledge any claims or admit to any facts without Horizon’ prior approval.
10.1. In case of personal injury or death as well as for deliberate and grossly negligent actions, Horizon has unlimited liability.
10.2. Horizon shall be liable for slight negligent action only in cases of a breach of duty essential to the purposes of this Agreement ("wesentliche Vertragspflicht"). Duties are considered essential if necessary for the due execution of the Agreement, so Customer may regularly rely on proper observation.
10.3. In the events described in Section 9.2, Horizon’s liability for any lack of commercial results, indirect damages and loss of profits is excluded.
10.4. Liability according to Section 9.2 shall be limited to typical and foreseeable damages at the time of conclusion of the Agreement.
10.5. Liability according to Section 9.2 shall be excluded in terms of Services provided free of charge.
10.6. Limitations of liability shall also apply to employees, subcontractors, and agents of Horizon.
10.7. A potential liability of Horizon for any guarantees or claims based on Product Liability Law remains unaffected.
10.8. Further liability of Horizon (in particular the non-fault liability in terms of defects existing when the Agreement is concluded under Sec. 536a para. 1 of the German Civil Code) is excluded.
To fulfil Horizon’s obligations under the Agreement, Horizon processes personal data submitted by Customer and its Users; and Customer acts as data controller in terms of applicable data protection laws (“Commissioned Data”). This section 11 specifies the data protection obligations and the Parties’ rights in connection with processing of Commissioned Data.
11.1.1 Horizon shall process the Commissioned Data exclusively on behalf of and in accordance with Customer’s instructions.
11.1.2 Section 11.1.1 does not apply if Horizon is legally obliged to data processing. Horizon shall notify Customer of any applicable legal restrictions before processing, unless that law prohibits such notification on important grounds of public interest.
11.1.3. Horizon’s processing of Commissioned Data is limited to the type, scope and purpose as follows:
11.1.4. Customer may issue instructions by using the functions of the software and the Services.
11.1.5. Customer may issue instructions about the type, extent, purpose and means of the processing of Commissioned Data.
11.1.6. Horizon shall immediately inform Customer if, in its opinion, an instruction infringes the GDPR or any other applicable data protection provisions.
11.2.1. Horizon shall ensure all personnel engaged in the processing of Commissioned Data are adequately bound to confidentiality obligations.
11.2.2. Horizon shall be responsible that natural persons acting under Horizon’s authority who have access to Commissioned Data will process such data only on Horizon’s instructions, unless they are obliged to process the data in accordance with the law of the European Union or the Member States.
Considering the state-of-the-art technology, the implementation costs and the nature, the scope, circumstances, and purposes of the processing of Commissioned Data, as well as the different likelihood and severity of the risk to the rights and freedoms of the data subjects, Horizon shall take appropriate technical and organizational measures to ensure an appropriate level of protection for the Commissioned Data.
11.3.1. Prior to processing Commissioned Data and throughout the term of the Agreement, Horizon shall establish and maintain, as well as develop further (if necessary), the technical and organizational measures. Horizon will ensure the processing of Commissioned Data will occur in accordance with those measures.
11.4.1. Customer authorizes Horizon to engage subprocessors. Horizon’s current subprocessors are listed here: www.gethorizon.net/subprocessors
11.4.2. At the request and instruction of Customer, Horizon will exercise all rights against a sub-processor, including but not limited to audit rights, which Horizon itself is entitled to under the respective data processing agreement and which concern the processing for the customer. Horizon is not entitled to any scope of assessment; Horizon exercises such rights as if they were Customer's rights.
11.4.3. Horizon shall inform Customer of its intention to engage a new subcontractor. Customer may reasonably oppose the proposed engagement of a new subcontractor. Customer shall notify Horizon of such objections in writing within 14 days after receipt of the Horizon’s notice relating to such a new subcontractor. If the Parties cannot resolve the objections, Horizon will not make the proposed engagement. If Customer does not object to the engagement of a new subprocessor, Horizon shall document these changes to the list of subcontractors.
11.4.4. The Services are run in a multi-tenant environment. Thus, Customer’s objection may lead to a degradation, in whole or in part, in the Services. In such instances, the Parties will attempt to resolve the situation amicably. If the Parties are unable to do so, Horizon may terminate the Agreement extraordinarily. Partial terminations are permitted.
11.4.5. Horizon shall contractually impose the same data protection obligations on each subprocessor as set out in this section 11.
11.4.6. Prior to each engagement and regularly throughout the term of the engagement, Horizon shall monitor the subprocessor’s technical and organizational measures to ensure their processing of Commissioned Data occurs in accordance with this section 11.
11.4.7. If subprocessors outside the European Union / the European Economic Area are engaged, Horizon will fulfill the requirements of Art. 44 (and following) GDPR.
11.5.1. Horizon shall use commercially reasonable efforts to support Customer in fulfilling Customer’s obligations to respond to requests exercising data subjects' rights.
11.5.2. Horizon shall (i) inform Customer without undue delay if a data subject contacts Horizon with a request for exercising his or her rights in relation to Commissioned Data; and (ii) on request, provide Customer with all reasonably necessary information available to Horizon regarding the processing of Commissioned Data which Customer needs to respond to the data subject’s request.
11.6.1. Horizon shall notify Customer without undue delay after becoming aware of any breach of Commissioned Data, including incidents that lead to the destruction, loss, alteration, or unauthorized disclosure of or access to Commissioned Data. If possible, Horizon’s initial notification shall include a description of: (i) the nature of the breach, indicating, as far as possible, the categories and the approximate number of affected data subjects, the categories and the approximate number of affected personal data sets; (ii) the likely consequences of the breach; and (iii) the measures taken or proposed by Horizon to remedy the breach and, where appropriate, measures taken to mitigate potential adverse effects.
11.6.2. If Customer must notify supervisory authorities and/or data subjects in accordance with Art. 33, 34 of GDPR, Horizon shall assist the Customer’s notification compliance efforts, if requested.
11.6.3. Horizon shall use commercially reasonable efforts to assist Customer with data protection impact assessments, and if necessary, subsequent consultations with the supervisory authority pursuant to Art. 35, 36 GDPR.
Upon termination or expiration of the Agreement, Horizon shall either completely and irrevocably delete or return all Commissioned Data to the Customer, unless Horizon is obligated by law to retain Commissioned Data.
11.8.1. Horizon is responsible for and shall regularly check to monitor that the processing of Commissioned Data is consistent with this section 11 and with the instructions by Customer. Horizon shall document its compliance in an appropriate manner and provide Customer with appropriate evidence upon request.
11.8.2. Customer shall be entitled to audit Horizon by himself or through a commissioned auditor bound to secrecy prior to the start of the processing of Commissioned Data and regularly during the term of the Agreement about compliance with the provisions of this section 11, in particular the implementation of the technical and organizational measures including inspections. Horizon will use reasonable efforts to facilitate such audits, including granting the necessary entry and access rights and the provision of necessary information.
12.1.1. This Agreement is the entire agreement between Customer and Horizon regarding Customer's use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations concerning its subject matter. Any term or condition stated in Customer’s purchase order or in any other Customer document is void.
12.1.2. These Terms between Customer and Horizon can be amended by respective separate agreements as follows: Horizon communicates the amended conditions before intended effectiveness in text form and highlights the regulations to be amended as well as the date of the intended entry into force. Besides, Horizon will grant Customer a reasonable, at least two (2) month period for declaring approval of or objection to the amended Terms for further use of services. If Horizon does not receive any declaration of Customer within this period, which begins with receipt of the announcement, the amended terms are considered agreed upon. Horizon will inform Customer separately about the legal consequences at the beginning of the period, including the right to object, the period to object and the relevance of remaining silent.
12.1.3. Amendments and side agreements to this Agreement need to be in written form or signed electronically. This also applies to amendments of this clause 10.2.
12.1.4. Customer’s right to exercise set-offs against claims of Horizon are limited to counter-claims, which are undisputed or affirmed by a legally binding adjudication or those which are part of a reciprocal agreement towards the respective claim.
12.1.5. The business relationship may be made public. Customer grants Horizon the right to use Customer’s word and word/figurative marks for marketing purposes; Provider may in particular use such marks on its website.
12.1.6. This Agreement is governed by the laws of the Federal Republic of Germany, excluding the Convention on the International Sale of Goods (CISG) and conflict of laws provisions.
Exclusive venue for any and all disputes with regard to this Agreement is Mainz, provided the parties of the Agreement are merchants or Customer has no place of general jurisdiction in Germany or in another member state of the European Union or its permanent or habitual residence is transferred abroad after entry into force of these Terms or permanent or habitual residence is not known at the time the action is filed.