Terms of Service
Effective Date: 18/11/2023
Particula GmbH, Reinachstr. 57, 80995 Munich (“Particula“) offers its customers a web-based access to their online portal for the collection, assessment, and analysis of crypto values, tokens, and other digitalized assets (collectively, “Digital Assets“; online portal hereinafter referred to as “Platform“). This contract governs the contractual relationship between Particula and the customer regarding the use of the Platform.
1. Object and Formation of the Contract / Transferability / Customer’s Terms and Conditions
1.1 The Platform is intended only for natural or legal persons acting as entrepreneurs under § 14 BGB. Particula reserves the right to request suitable information and require evidence indicating that the customer is not a consumer under § 13 BGB. There is no entitlement to contract formation.
1.2 The contract for the use of the Platform is concluded by the customer completing the registration process on the Platform and subsequent acceptance by Particula. Registration is carried out by an employee authorized by the customer.
1.3 Until clicking the “Submit” button, the customer can cancel the registration process at any time or modify the provided information by deleting, adding, or correcting them in the respective fields, or by closing their web browser or the tab. After completing the registration process, the customer can modify the information in their customer account at any time.
1.4 By completing the registration process or sending the contract, the customer submits a legally binding proposal for contract formation to Particula. In the case of an online contract, Particula will send an immediate confirmation of the offer’s receipt to the email address provided by the customer during registration. However, this order confirmation does not constitute acceptance of the customer’s offer.
1.5 A contract between Particula and the customer is only concluded when Particula has accepted the offer. The acceptance is sent to the customer either via email or by providing access to the Platform.
1.6 Particula does not store the contract text after contract conclusion. However, in the case of an online contract, it is accessible to the customer at any time under Terms of Service. The contract can only be concluded in the German language.
1.7 Particula reserves the right to transfer effectively established usage relationships, wholly or in part, to other legal entities associated with Particula. The customer is granted the right to withdraw from the contract in such a case. The customer will be informed in advance.
1.8 Unless otherwise agreed in writing, the customer expressly grants Particula permission to publicly display its use of the platform for the purpose of self-promotion (references/portfolio) in an appropriate manner. In particular, Particula is entitled to advertise the business relationship with the customer and to point out itself as the author on all advertising materials created and in all advertising measures, without the customer being entitled to any payment for this.
1.9 The contract language is German. Translations into other languages are solely for understanding and are not legally binding.
2. Services by Particula
2.1 Particula provides the customer with time-limited access to the Platform over the Internet for the duration of the contract. The exact scope of the services to be provided by Particula is finally determined by the following explanations. Beyond the agreed services, the customer has no claim to a specific configuration or specific functionalities of the Platform.
2.2 The exact scope of the services to be provided by Particula is specified in Attachment 1. Beyond the agreed services, the customer has no claim to a specific configuration or specific functionalities of the Platform.
2.3 These conditions exclusively govern the use of the Platform. The purchase of Digital Assets or an investment in Digital Assets is not possible through the Platform.
2.4 Operation and maintenance of the Platform are the responsibility of Particula. The place of performance is the router exit of the data center. The customer is responsible for maintaining Internet access and any hardware (e.g., router, smart device) or software (e.g., browser) necessary for access to the Platform. The customer has no claim to access the source codes of the Platform provided by Particula. The operation and configuration of the Platform are the responsibility of the customer.
2.5 Unless otherwise agreed, the average availability of the Platform is 98% per year. This excludes required planned maintenance work and disturbances beyond Particula’s control; particularly force majeure. Particula will, if possible, inform the customer in advance of planned maintenance work by providing text form to the contact person named by the customer. However, Particula expressly reserves the right, if necessary, to also carry out unannounced maintenance work, especially if this is required for data and operational security.
2.6 Particula is entitled to engage subcontractors as auxiliary agents for service provision at its discretion.
3. Changes to the Platform
Particula may make changes to the platform in the following cases:
3.1 Extensions and Further Developments
Particula is entitled to add additional functions to the services at any time. Functions introduced by Particula after the conclusion of this contract are considered – unless otherwise agreed – as free additional services. Particula is entitled to discontinue these after weighing the mutual interests. Particula also reserves the right to offer optional extensions and further developments only against payment of an additional fee and under the conclusion of an additional usage agreement.
3.2 Reasonable and Insignificant Changes
Particula is entitled to change, limit or discontinue the range of functions of the services to a reasonable extent for the customer. Such a change is particularly reasonable if it only affects insignificant components of the services to be provided by Particula (such as mere design or display changes that do not or only slightly affect the functionality of the service) or becomes necessary for an important reason. An important reason exists in particular when
- Disruptions in service delivery by Particula’s subcontractors are present,
- The change is required for security reasons,
- It is required due to changes in legislation or case law, or
- Similar important reasons exist, after weighing them against the interests of the customer, the respective change is reasonable for the customer.
This includes in particular adjustments and further developments of the rating logic and the tailoring and allocation of score values and evaluation categories of digital assets.
Subject to paragraph 3.3, any change to the range of functions must maintain the performance characteristics defined in this agreement as well as the main contractual obligations of Particula in full.
If a change does not only concern time-critical security updates, extensions of the functions or not only insignificant components of the services to be provided by Particula, Particula will notify the customer of the change at least four weeks before it comes into effect in writing or in text form.
3.3 Other Changes
Particula is entitled to make changes to the range of functions of the services also in other than the cases specified in paragraphs 3.1 and 3.2. In this case, Particula informs the customer about the planned changes one month before the introduction of the changes. During this time, the customer has the right to state whether he accepts the planned changes or not. If the customer does not respond during this period, the changes are considered approved. Particula will inform the customer of this legal consequence of his silence in the change notification. If the customer objects to the changes in a timely manner, Particula has the right, at its option, to either continue to provide the affected service without the planned changes or to terminate the order with a notice period of one month from receipt of the customer’s objection.
5.1 Unless expressly agreed otherwise, the customer pays Particula the fee agreed upon by selecting the respective license model in the course of the ordering process for the use of the platform.
5.2 Unless expressly agreed otherwise, the fees are annual and net plus applicable sales tax.
5.3 Unless expressly agreed otherwise, invoicing is annual and all amounts are due upon invoicing. If the customer grants Particula a SEPA direct debit mandate, Particula will not debit the invoice amount before the seventh day after the invoice date and the SEPA pre-notification from the agreed account.
5.4 Particula reserves the right to adjust the license fee agreed upon according to paragraph 5.1 at the end of each contract term (see paragraph 10) due to increased operating costs or increased usage volume of the customer compared to other users, but only to the extent of the actual additional costs incurred. Particula will inform the customer of this at least three months before the end of the respective contract term in writing or in text form. In the event of an increase of more than 10% compared to the previous year, the customer has the right to terminate the contract with a notice period of two months to the respective contract end.
6. Customer Obligations
6.1 The customer assures that they use the platform exclusively as an entrepreneur within the meaning of § 14 BGB.
6.2 The customer is responsible for regularly and appropriately backing up their data processed on the platform, insofar as this is technically possible for them.
6.3 Access and Access Data
6.3.1 The customer must securely store the access data to the platform and may only make it accessible to authorized employees. The customer undertakes to obligate its employees to handle the access data confidentially and to notify Particula immediately if there is suspicion that the access data could have become known to unauthorized persons. Furthermore, the customer undertakes to comply with all security precautions, functional and other restrictions of the platform. In particular, the customer may not remove, overcome, disable, or otherwise bypass security or authentication mechanisms.
6.3.2 The customer will instruct their employees on the permissible use of the platform in accordance with this contract.
6.3.3 The customer is prohibited from transferring the platform to third parties unless expressly agreed otherwise.
6.3.4 The customer is obligated to keep the information provided during registration up to date and to inform Particula immediately of any changes. This includes, in particular, data on the customer’s contact and business information.
6.3.5 Particula is entitled to block the customer’s access to the platform if
- There are indications that the customer’s access data has been or is being misused, or the access data has been or will be provided to an unauthorized third party, or access data is being used by more than one natural person;
- There are indications that third parties have otherwise gained access to the IT infrastructure provided to the customer;
- The blocking is necessary for technical reasons;
- Particula is obligated to block access due to applicable laws, or by judicial or administrative order;
- The customer is more than 30 days late with the payment of the agreed remuneration as per clause 5 of the contract;
- The customer has provided false or invalid contact data, and communication between Particula and the customer is no longer possible;
- The customer has provided false bank details, and regular fulfillment of the customer’s service obligations is not guaranteed.
Particula should announce the blocking to the customer at least one working day before the blocking takes effect in text or written form, insofar as the announcement is reasonable considering the mutual interests and is compatible with the purpose of the blocking.
6.5.1 All rights to information, images, texts, and other content that are transmitted to Particula by the customer during the use of the platform (“Content“) remain with the customer. However, the customer grants Particula a non-exclusive right to use the content to the extent necessary to fulfill the contract with the customer. Particula is entitled to grant sub-licenses to its agents as far as this is necessary for the fulfillment of the contract. Otherwise, the right of use is not transferable. Particula is entitled to keep customer content beyond the duration of the contract if this is technically or legally (in particular to fulfill regulatory requirements) necessary. In particular, Particula is authorized to keep backup copies of the content provided by the customer and to temporarily or permanently store such information as is necessary for accounting, documentation, and billing purposes.
6.5.2 The customer guarantees that the content transmitted by them does not infringe the rights of third parties (for example, personal rights, rights to one’s own image, copyrights, trademark rights, etc.) or otherwise violate applicable law (for example, data protection regulations) (“Prohibited Content“).
6.5.3 Particula is entitled to block or remove Prohibited Content immediately; the same applies if Particula is obligated to do so due to a complaint from a third party, a court judgment, or by law.
6.5.4 The customer guarantees that they will comply with all applicable legal regulations when using the platform, especially copyright and data protection laws. The customer indemnifies Particula from all claims made by third parties due to the customer’s use of the platform. Particula will inform the customer immediately about claims made by third parties and provide the necessary information and documents for defense upon request. In addition, Particula will either leave the defense to the customer or carry it out in consultation with them. In particular, Particula will not acknowledge or undisputedly fulfill claims made by third parties without consulting the customer. The provisions of this clause apply accordingly to contractual penalties as well as official or court-imposed fines and penalties, as far as the customer is responsible for them.
6.6 The customer undertakes to refrain from any measures that could endanger or disrupt the functionality of the platform, and not to access or process data for which they are not authorized. In particular, the customer may not use scripts to query confidential data from other customers or to automatically redirect other customers to other internet offers outside the platform. Furthermore, the customer must ensure that their information transmitted via the platform and data entered are not infected with harmful computer programs, such as viruses, worms, Trojan horses, or other malware.
7.1 For free services, Particula provides a warranty in accordance with statutory provisions.
7.2 Otherwise, Particula provides a warranty for defects in the provision of the platform exclusively in accordance with the following provisions.
7.3 Defects are significant deviations from the contractually agreed functional scope of the platform.
7.4 If the services provided by Particula under this contract are defective, Particula will, within a reasonable period and upon receipt of a written (email sufficient) notice of defect from the customer, either rectify the services or re-perform them at its discretion. When using third-party software that Particula has licensed for use by the customer, the remedy consists of obtaining and installing generally available upgrades, updates, or patches. The provision of usage instructions by which the customer can reasonably circumvent the defect to use the platform in accordance with the contract is also considered a remedy.
7.5 If the defect-free provision of the services fails for reasons that Particula is responsible for, even within a reasonable period set by the customer in writing (email is sufficient), the customer may reduce the agreed remuneration by an appropriate amount. The right to reduction is limited to the monthly fixed price for the portion of the service that is defective.
7.6 If the reduction under clause 7.5 reaches the maximum amount specified in clause 7.5 in two consecutive months or in two months of a quarter, the customer can terminate the contract without notice.
7.7 The customer will promptly notify Particula of any defects in writing (email is sufficient). Furthermore, the customer will support Particula in the rectification of defects free of charge in a reasonable manner and, in particular, will provide Particula with all the information and documents that Particula needs for the analysis and rect
7.7 The customer shall promptly notify Particula of any defects that may occur, in writing (email is sufficient). Furthermore, the customer shall support Particula in rectifying the defects in a reasonable manner without charge, and shall in particular provide Particula with all information and documents necessary for the analysis and elimination of defects.
7.8 In addition to reduction or termination according to the previous sections, the customer may claim damages in accordance with legal regulations and the limitation of liability in section 8.
7.9 Any further warranty claims are excluded.
7.10 The statute of limitations for warranty claims is one year, unless they are based on intent or gross negligence, or concern damages resulting from injury to life, body, or health.
8. Damages and Liability
8.1 For free services, Particula is liable according to legal regulations.
8.2 Otherwise, Particula is fully liable for intent and gross negligence, as well as for damages resulting from injury to life, body, or health.
8.3 In cases of simple negligence, Particula is liable for breach of a material contractual obligation. A material contractual obligation in the sense of this paragraph is an obligation whose fulfillment enables the implementation of the contract and upon whose fulfillment the customer may regularly rely.
8.4 In the case of paragraph 8.3, Particula is not liable for lack of economic success, lost profits, and indirect damages.
8.5 The liability according to the preceding paragraph 8.3 is limited to the typical, foreseeable damage at the time of contract conclusion.
8.6 Liability for damages due to data loss in the case of paragraph 8.3 is limited to the amount of data recovery that would have been incurred even with regular and hazard-responsive data backup by the customer.
8.7 The limitations of liability apply correspondingly in favor of employees, agents, and vicarious agents of Particula.
8.8 Any liability of Particula for given guarantees (which must be expressly designated as such) and for claims based on the Product Liability Act remains unaffected.
8.9 Any further liability of Particula is excluded. In particular, liability without fault for initial defects under § 536a para. 1, 1st alternative of the German Civil Code (BGB) is excluded.
9. Confidentiality and Non-Disclosure
9.1 The parties agree to treat confidential information and documents (“confidential information“) of the other party, which are either confidential due to the nature of the information or the circumstances of their disclosure, or which have been designated or marked as confidential by the disclosing party, like business and/or trade secrets, for the exclusive purposes of this contract, and not to disclose them to third parties. The receiving party will take appropriate technical and organizational measures to prevent unauthorized access/disclosure of confidential information. Third parties within the meaning of this agreement also include affiliated companies of the receiving party in which the receiving party does not have a majority of capital and voting rights. The employees of the receiving party as well as other third parties commissioned by it (including subcontractors and freelancers) must be obliged accordingly.
9.2 Confidential information on the part of Particula includes in particular the software of the platform, as well as all technologies of Particula, information that Particula provides via the platform or in the context of support inquiries or collaboration for troubleshooting, as well as this contract, including its appendices and agreed conditions.
9.3 The receiving party is entitled to disclose the information and documents made available to it to third parties if and to the extent that this is essential for the fulfillment of this contract or the exercise of contractual rights, or is mandatory for legal or regulatory reasons. In the event of inquiries from third parties, courts, or administrative authorities regarding the disclosure of confidential information, the receiving party must immediately inform the disclosing party in writing or text form. The receiving party must also support the disclosing party in its efforts to prevent the disclosure of confidential information.
9.4 The obligation of confidentiality does not apply if the confidential information was already known to the receiving party before the disclosure, is generally known, or becomes known through no fault of the receiving party, was developed by the receiving party without access to the confidential information of the disclosing party, or is made known to third parties by a bona fide, authorized third party. Mandatory legal disclosure obligations remain reserved. If the receiving party relies on one or more of the aforementioned reasons, it must prove this by providing appropriate evidence.
9.5 The confidentiality obligation begins with the knowledge of the confidential information and exists for the entire duration of this contract. In addition, the confidentiality obligation exists for a period of three years from the termination or end of the contract term, unless legal provisions provide for a longer confidentiality obligation. In particular, any trade secrets are to be treated as confidential for as long as they are trade secrets.
9.6 During the validity of this confidentiality obligation, confidential information must be returned immediately, undamaged, and in full at the first request of Particula. Particula can also order that certain confidential information be destroyed, deleted, or placed in secure custody, and that the execution be confirmed in writing by the customer. The above provisions in this paragraph only apply to the extent that this does not significantly impair the contractual use of the contractual service.
9.7 As far as agreed in the service description, Particula is entitled to name the customer, stating the full company name and using the company logo, in marketing materials (including websites) as a reference customer.
9.8 With the exception of paragraph 9.7, the above provisions do not establish any intellectual property rights. All rights of use granted under this contract remain unaffected by the above provisions.
10. Duration and Termination
10.1 Unless otherwise agreed, the contract begins on the first calendar day of the month following the conclusion of the contract.
10.2 Unless otherwise agreed, the contract term is one year from the start of the contract.
10.3 The contract is extended by the agreed term unless terminated in writing by either party with a notice period of 6 months before the end of the respective term.
10.4 The right of the parties to terminate for good cause remains unaffected. For Particula, good cause exists in particular when:
- the customer repeatedly and despite prior warning from Particula posts prohibited content on the platform;
- the customer culpably violates their confidentiality obligation under clause 9;
- the customer is in arrears for more than six weeks with the payment of the agreed fee under clause 5 or otherwise culpably breaches this contract, and Particula has threatened termination with a notice period of two weeks prior to the termination taking effect, in text or written form, to the customer;
- a responsible authority (e.g., Federal Financial Supervisory Authority (BaFin)) demands the adjustment or termination of this contract or objects to or prohibits the execution of this contract.
11. Changes to the Terms of the Contract
Particula may change these contract terms in accordance with this clause 11, provided this is done (i) to implement amended legal requirements or case law, (ii) to implement changed technical requirements, (iii) to maintain the operation of Particula’s service, (iv) to adapt to changed market conditions, and (v) in favor of the customer. An adjustment will only take place if it does not shift the contractual balance between Particula and the customer to the detriment of the customer. Particula will inform the customer of an adjustment at least six weeks in advance by a message within the platform or by email. The customer may object to the adjustment. If he does not do so within six weeks of receiving the notice of the adjustment, his consent to the adjustment is deemed to have been given. The notice of the adjustment will separately inform the customer of the six-week period and the legal consequences of his silence.
12. Final Provisions
12.1 Changes and side agreements to this contract require the written form. This also applies to this written form clause.
12.2 The customer can only offset against claims from Particula or assert a right of retention if the counterclaim is undisputed or has been legally established, or is in a synallagmatic relationship to the claim concerned.
12.3 Should any provision of this contract, even if later added, be invalid, unenforceable, or void in whole or in part, or should this contract have a gap, the effectiveness of the remaining provisions of this contract shall remain unaffected. The parties agree to replace the invalid, unenforceable or void provision with a legally compliant and enforceable provision that comes as close as possible to the economically intended purpose of the invalid, unenforceable or void provision. Similarly, the parties shall supplement a necessary, appropriate provision where one is lacking.
12.4 The law of the Federal Republic of Germany applies, excluding the UN Sales Convention.
12.5 The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Particula’s place of business, provided that the contracting parties are merchants or the customer does not have a general place of jurisdiction in Germany or in another EU member state, or has moved his permanent residence abroad after the effectiveness of these General Terms and Conditions, or his residence or habitual abode is not known at the time the lawsuit is filed.