General Terms of Use

(2) The respective software is operated by the Provider as a web-based SaaS or cloud solution. The customer is enabled to use the software stored and running on the servers of the Provider or of a service provider commissioned by the Provider via an Internet connection during the term of the individual contract for its own purposes and to store and process its data with the help of the software.

(3) These general contractual terms apply exclusively. The customer’s own general terms and conditions shall not apply. Any counter-confirmations of the customer with reference to its own terms and conditions are expressly rejected.

2 Conclusion of the User Agreement

The Provider submits a customer-specific offer in text or electronic form. After the offer is accepted, the Provider sets up access for the customer.

3 Nature and Scope of Services

(1) The Provider makes the respective software available to the customer in its latest version at the router output of the data center where the server with the software is located (“handover point”) for use. The Provider provides the software, the computing power required for use, and the necessary storage and data processing capacity. However, the Provider is not responsible for establishing and maintaining the data connection between the customer’s IT systems and the handover point described.

(2) Insofar as the respective software runs exclusively on the servers of the Provider or of a service provider commissioned by the Provider, the customer does not require any copyright usage rights to the software, and the Provider does not grant such rights. However, the Provider grants the customer for the term of the contract a non-exclusive, non-transferable right, limited in time to the duration of the user agreement, to load the software’s user interface for display on the screen into the working memory of the devices used in accordance with the contract and to make the reproductions of the user interface that occur in this process.

4 Availability of the Software

(1) The Provider points out to the customer that restrictions or impairments of the services provided may occur that are beyond the Provider’s control. These include, in particular, actions by third parties who are not acting on behalf of the Provider, technical conditions of the Internet that cannot be influenced by the Provider, as well as force majeure. The hardware, software, and technical infrastructure used by the customer may also influence the Provider’s services. Insofar as such circumstances affect the availability or functionality of the services provided by the Provider, this has no effect on the conformity of the services with the contract.

(2) The customer is obliged to notify the Provider immediately and as precisely as possible of any functional failures, disruptions, or impairments of the software. If the customer fails to provide this cooperation, Section 536c of the German Civil Code (BGB) shall apply accordingly.

(3) The availability of the data center network at the router output to the Internet averages 99 % per year. The client-side connection to the Internet is the customer’s responsibility and is not part of the SaaS service scope. Downtime is determined in full minutes and calculated from the sum of the fault clearance times per year. Excluded from this are periods identified by the Provider as maintenance windows for optimization and performance enhancement, as well as delays in troubleshooting for reasons not attributable to the Provider and outages due to force majeure.

5 Rights for Data Processing and Data Backup

(1) The Provider complies with statutory data protection provisions.

(2) For the purpose of fulfilling the contract, the customer grants the Provider the right to duplicate the data to be stored by the Provider for the customer to the extent necessary to provide the services owed under this agreement. The Provider is also entitled to keep the data in a backup system or a separate backup data center. To rectify faults, the Provider is further entitled to make changes to the structure or format of the data.

(3) The Provider regularly backs up the customer’s data on the server for which the Provider is responsible. Via a recovery procedure, the Provider can restore the customer’s data at the customer’s explicit request. Details of the automated backup and recovery concept will be provided by the Provider upon request in the form of technical documentation.

(4) Whenever and insofar as the customer processes personal data of third parties on IT systems for which the Provider is technically responsible, a data processing agreement pursuant to Article 28 GDPR must be concluded.

6 Support

(1) A support case exists if the respective software does not fulfill the contractual functions in accordance with the service description.

(2) If the customer reports a support case, the customer must provide as detailed a description as possible of the respective functional malfunction to enable the most efficient troubleshooting.

(3) Reports are to be made by e-mail and only during regular office hours (Monday to Friday from 9:00 a.m. to 5:00 p.m.).

7 Remuneration

(1) The remuneration for the respective services is specified in the customer-specific offer. All prices are exclusive of the applicable value-added tax. The method of payment for the license fees is defined in the offer.

(2) In all other respects, the Provider’s current price list applies.

(3) Ongoing fees for programs may be changed by the Provider with three months’ written notice to the customer. In this case, the customer has the right to terminate the agreement.

(4) Individual items not specified in the offer, such as separate training sessions or instruction, will be charged according to the Provider’s current price list based on an agreement regarding the respective service item.

8 Customer’s Duties to Cooperate

(1) The customer shall support the Provider to a reasonable extent in the performance of the contractual services.

(2) For use of the software, the system requirements set out in the product description must be met by the customer. The customer is responsible for ensuring this.

(3) Insofar as the customer provides the Provider with protected content (e.g., graphics, trademarks, and other copyright- or trademark-protected material), the customer grants the Provider all rights necessary for the execution of the contractual agreement. This includes, in particular, the right to make the relevant content publicly accessible. The customer warrants that it holds all necessary rights to the provided materials to grant such rights to the Provider.

(4) The customer must keep the access data provided to it confidential and ensure that any employees with access do the same. The Provider’s services may not be made available to third parties unless expressly agreed by the parties.

9 Warranty

The statutory warranty provisions for rental agreements apply. Sections 536b BGB (knowledge of the defect by the lessee at the time of contract conclusion or acceptance) and 536c BGB (defects occurring during the rental period; duty of the lessee to report defects) apply. However, the application of Section 536a (2) BGB (lessee’s right of self-remedy) is excluded. Likewise, the application of Section 536a (1) BGB (lessor’s liability for damages irrespective of fault) is excluded insofar as the provision provides for strict liability..

10 Liability and Damages

(1) The contracting parties are liable to each other without limitation for damages caused intentionally or by gross negligence by them, their legal representatives, or their vicarious agents.

(2) In cases of slight negligence, the contracting parties are liable without limitation for injury to life, body, or health.

(3) Otherwise, a contracting party is only liable if it breaches a material contractual obligation. Material contractual obligations are those obligations that are of particular importance for achieving the contractual purpose, as well as all those obligations whose culpable breach may jeopardize the achievement of the contractual purpose. In such cases, liability is limited to the compensation of the foreseeable, typically occurring damage. The Provider’s strict liability for damages pursuant to Section 536a BGB for defects existing at the time of contract conclusion is excluded; paragraphs (1) and (2) remain unaffected.

(4) A contracting party is obliged to pay a contractual penalty only if this agreement expressly provides for such a penalty. The penalty does not need to be reserved in advance. Set-off with or against the penalty is permitted.

(5) Liability under the German Product Liability Act remains unaffected.

11 Customer Data and Indemnification from Third-Party Claims

(1) The Provider stores, as a technical service provider, the content and data that the customer enters and stores when using the software and makes available for retrieval. The customer undertakes not to upload any content or data that is criminal, absolutely unlawful, or unlawful in relation to specific third parties, and not to use programs containing viruses or other malicious software in connection with the software. In particular, the customer agrees not to use the software to offer illegal services or goods. With regard to personal data of the customer and its users, the customer is the controller and must therefore always verify that processing such data via the software is supported by appropriate legal grounds.

(2) The customer is solely responsible for all content and data used or processed by it or its users and for obtaining any rights that may be required. The Provider does not become aware of customer or user content and, as a rule, does not monitor the content used with the software.

(3) In this context, the customer agrees to indemnify the Provider from any liability and all costs, including possible and actual costs of legal proceedings, if the Provider is held liable by third parties—including employees of the customer personally—because of alleged acts or omissions of the customer. The Provider will inform the customer of such claims and, to the extent legally possible, give the customer the opportunity to defend the asserted claim. At the same time, the customer must promptly provide the Provider with all information available to it about the facts underlying the claim in full.

(4) Any further claims for damages by the Provider remain unaffected.

12 Term and Termination of the Agreement

(1) The contract term is based on the customer-specific offer. If the customer does not give notice of termination at the end of the initial or any subsequent contract period, the contract is automatically renewed for another contract period.

(2) The right of either party to terminate the contract for good cause without notice remains unaffected. Good cause for the Provider exists in particular if

the customer is in arrears with the agreed payment for two consecutive due dates or for a period covering more than two due dates and amounting to the fees for two months;

the customer is insolvent or insolvency proceedings have been opened on its assets or the application for opening such proceedings has been rejected for lack of assets;

the customer violates material contractual obligations—especially obligations concerning the use of the Provider’s services—and repeats such violations even after being warned by the Provider.

(3) After termination of the contract, the Provider shall return to the customer all documents and data carriers provided by the customer and still in the Provider’s possession that are related to this agreement and shall delete the data stored with the Provider, unless statutory retention obligations or rights of retention exist.

13 Confidentiality

(1) The parties are obliged to keep permanently secret all information about the other party that becomes known to them in connection with the individual agreement and that is marked as confidential or is recognizable as business and trade secrets (“confidential information”) based on other circumstances, and not to disclose it to third parties, record it, or otherwise use it unless the other party has expressly consented in writing to the disclosure or use, or the information must be disclosed by law, court order, or administrative decision.

(2) Information is not considered confidential within the meaning of this section 13 if

it was already known to the other party without any obligation of confidentiality,

it is generally known or becomes generally known without violation of confidentiality obligations, or

it is disclosed to the other party by a third party without violation of a confidentiality obligation.

(3) The obligations under this section 13 survive the end of this agreement.

14 Transfer of Rights and Obligations

The assignment of rights and obligations from the individual agreement is only permissible with the prior written consent of the Provider. The Provider is entitled to engage third parties to fulfill its obligations.

15 Final Provisions

(1) If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive—also international—place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the Provider’s registered office. The same applies if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, we are also entitled to bring an action at the place of performance of the service obligation or at the customer’s general place of jurisdiction.

(2) The contractual relationship between the Provider and the customer, including the question of the effective conclusion of the contract and the effective incorporation of these General Terms and Conditions, is governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

(3) Should individual provisions of these General Terms of Use be invalid or lose their validity due to a subsequent circumstance, or should a gap be found in these General Terms of Use, the validity of the remaining provisions shall not be affected. In place of the invalid contractual provision or to fill the gap, an appropriate provision shall apply that, as far as legally possible, comes closest to what the contracting parties would have intended had they considered this point.