Terms and Conditions
1. Scope of Application, Precedence of Individual Agreements, Conflicting GTC, Formal Requirements
1.2. If third parties, in particular sales partners of the Provider, make statements that deviate from the agreements stipulated in the order and/or these GTC, these are not covered by the scope of the power of representation. Therefore, they do not become part of the contract between the parties. Objections to third parties are excluded against the Provider.
1.3 . Deviating or conflicting terms and conditions of the Customer or third parties do not apply, even if the Provider does not separately object to their validity in individual cases. Even if the Provider refers to a letter that contains or refers to the terms and conditions of the Customer or a third party, this does not constitute an agreement with the validity of those terms and conditions.
1.4 . Legally relevant declarations and notifications to be made by the Customer to the Provider after the conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
2.1 . "User Account" means the access authorization to the Provider's Service, if any, to which access is restricted.
2.2 "Customer Data" means all content of the Customer that the Customer transmits to the Provider in connection with the use of the Service, the Storage Space and the User Account. Customer Data also includes the Access Data.
2.3 . "Service Description" means the description of the technical functional scope of the respective Service, which is provided to the Customer by the Provider in the respective individual order.
2.4 . "Service" means the respective software applications that are provided by the Provider and can be booked by the Customer.
2.5. "Service Level Agreement" (SLA) defines the quality characteristics of a Service in terms of availability and maintenance, which are provided by the Provider. The SLA is an essential part of the contractual relationship.
3.3. The Provider is entitled to provide the Services through third parties (including affiliated group companies of the Provider) as subcontractors.
4. Provision of Service and Storage Space
4.2. The Customer's access to the Service shall be browser-based via the Internet or via an application interface set up by the Provider.
4.3. For access and use of the Service, the Provider shall provide the Customer with the necessary access data required to access the Service.
4.4. From the agreed point in time of the operational provision of the Service, the Provider shall provide storage space to the agreed extent for the Customer Data transferred to the Service by the Customer for the contractual term of the individual order, insofar as this is necessary for the intended use of the Service.
4.5. The Customer Data shall be stored and regularly backed up by the Provider during the contractual term of the Individual Order. The Customer shall be solely responsible for complying with the Customer's retention periods under commercial and tax law.
5. Technical Availability of the Service
5.1. The Provider owes the availability of the Service at the Internet nodes of the data center as agreed in the respective individual order and/or the SLA.
5.2. The Provider owes the availability of the functionalities of the Service described in the Service Description only if the Customer fulfills the system requirements also regulated therein. The Customer is solely responsible for the fulfillment of the system requirements. For changes to the system requirements or the Provider's technical system, the provision of Section 15 shall apply accordingly.
5.3. The Provider is only responsible for the proper functioning of its systems up to the Internet nodes of its data center.
6.1. The Provider shall provide the Customer with a support center as a first point of contact (FPoC) for faults that occur within the scope of the Service provided. The support availability, fault classes and response times are regulated in the SLA.
6.2. The fault reporter is informed at regular intervals about the processing status and the solution until it has been implemented and the fault has been eliminated. If, however, it follows from the qualification of the fault ticket by the Provider that the fault is due to a violation of Clause 13 by the Customer or for other reasons for which the Provider is not responsible, then the fault ticket shall be returned to the Customer. In this case the Customer has to solve the problem on his own responsibility or the Customer can ask the Provider for appropriate chargeable support. The Provider offers, as far as feasible, support at the then agreed hourly rates.
6.3. The provision and installation of updates of the Service and their implementation is carried out by the Provider as required in accordance with the provisions in the SLA.
7. Other Services of the Provider
7.1. The Provider shall provide the Customer with documentation for the Service in its current version in electronic form during the term of the individual order.
7.2. Other services of the Provider, in particular support and integration services (for Customer systems and/or for systems/technical units), as well as consulting services, require a separate written agreement. The Customer shall not be entitled to the provision of such services.
7.3. Company-specific functions can be defined by the customer and optionally ordered. Section 8 shall also apply to the scope of the rights of use.
8. Rights of use and scope of use
8.2. The open source software components used in the Provider's Service shall be presented in the Service description or the Service itself, if a necessary obligation exists by conditions of the open source software.
8.3. The Provider provides the Service in the SaaS model (Software as a Service) via remote access. The Service is not provided to the Customer for the Customer's own permanent storage, nor is the Customer entitled to its own access or data center operation.
8.4. If the Provider provides new versions, updates, upgrades, modifications or extensions of the Service during the term or makes other changes with regard to the Service, the provisions of Section 8 shall also apply to these, even if the modifications or extensions were ordered by the Customer and paid for separately.
b.) to make the user account and/or the Service accessible to third parties; unless such third parties use the Service exclusively on behalf of and for the Customer, or
c.) to process, reproduce or transfer the user account and/or the Service for a limited period of time, in particular not to rent or lend it.
8.6. The Service may not be used for illegal purposes, be it in violation of applicable law, official requirements or third party rights.
8.8. If the Customer violates the provisions of Section 8, the Provider may block the Customer's access to the Service after prior notification of the Customer in text form, if the violation can be remedied. The block shall be lifted as soon as the reason for the block no longer exists. If the Customer continues to violate or repeatedly violates the provisions of Section 8 despite notifying the Provider, the Provider may terminate the individual order without notice, unless the Customer is not responsible for the violation. The right of the Provider to claim damages remains unaffected.
9. Intellectual Property
Subject to Customer's data, all content of the Software itself and of the Service in general, such as text, graphics, logos, button icons, images and audio clips are the property of the Provider or its licensors and are protected by copyright or other intellectual property rights.
10. Customer data
10.1. The Customer warrants that
10.2. The Customer hereby grants the Provider the right to use the Customer Data stored on the Storage Space for the purpose of using the Service for the performance of the contractual relationship, in particular to reproduce it for this purpose (e.g. for data backups), to modify it and to make it available for the purpose of accessing it.
10.3. Notwithstanding the Provider's obligation to back up data pursuant to Section 4.7, the Customer shall back up its Customer Data on a regular basis. Each data backup by the Customer shall be made in such a way that the recovery of the Customer Data is possible at any time.
10.4. The Provider is entitled to immediately block the use of the Service and the storage space if there is reasonable suspicion that the stored Customer Data is illegal and/or violates the rights of third parties. A reasonable suspicion for an illegality and/or a violation of rights exists in particular if courts, authorities and/or other third parties inform the Provider thereof. The Provider shall notify the Customer of the block and the reason for it. The block is to be lifted as soon as the suspicion is invalidated.
11. Claims for defects
11.2. The Customer's right to terminate the contract due to non-provision of use pursuant to Section 543 (2) Sentence 1 No. 1 of the German Civil Code (BGB) is excluded, unless the provision of use in accordance with the contract is deemed to have failed. Production of use in accordance with the contract shall be deemed to have failed at the earliest after the second unsuccessful attempt.
11.3. If the Service is provided free of charge, the Provider does not assume any warranty and/or maintenance, except in case of malice.
12. Remuneration, price change
12.1. The amount of remuneration shall be based on the prices agreed in the individual order. The remuneration is calculated per contract year and is due in advance at the beginning of the period of use.
12.2. The Provider is entitled to increase the remuneration according to the individual order for the first time after the expiration of twelve months after the conclusion of the contract with a written notice of three months to the end of the month. Further increases of the respective adjusted remuneration items can be demanded at the earliest at the end of 12 months after the last price adjustment. In the event of an adjustment of the remuneration, the Customer shall have the right to terminate the individual order within a period of six weeks from the effective date of the price adjustment if the increase exceeds 5% of the last valid prices.
12.3. Other services not covered by the remuneration agreed in the individual order can be requested by the Customer from the Provider. The Provider will first check whether it is prepared to provide these services and, if necessary, submit a corresponding separate offer to the Customer.
12.4. All prices are in Euro plus value added tax or corresponding indirect tax in the respective legal amount. In addition to the payments due in accordance with the individual order, the Customer shall pay the statutory sales tax or corresponding indirect tax applicable in each case. The remuneration shall become due on the date of the respective invoice and shall be paid within 14 calendar days to the account specified in the invoice.
12.5. Each party shall be responsible, as required under applicable law, for identifying and paying all taxes and other governmental charges (as well as penalties, interest and other surcharges thereon) imposed on such party with respect to transactions and payments pursuant to the applicable Individual Order.
12.6. All payments made by the Customer to the Provider under the Individual Order will be made without any deductions or withholdings. Offsetting with claims other than undisputed or legally established claims is not permitted. The Customer may not reduce the current remuneration payments in the event of defects, unless otherwise agreed, in particular within the scope of service credits. Any existing right to reclaim remuneration paid under reservation shall remain unaffected. The exercise of a right of retention that is not based on a right arising from the contractual relationship is not permitted.
13. Duties and obligations of the customer
13.1. The Customer shall perform all acts of cooperation required for the performance of the contractual relationship on the part of the Customer. In particular, he is obliged to
a.) To immediately change all passwords assigned by the Provider into passwords known only to him, to keep the usage and access authorizations assigned to him secret, to protect them from access by third parties and not to pass them on to unauthorized users. This data shall be protected by suitable, effective measures. The Customer shall inform the Provider immediately if there is any suspicion that the access data and/or passwords may have become known to unauthorized persons;
b.) to provide the system requirements described in the service description;
c.) to comply with the restrictions/obligations with regard to the rights of use pursuant to Section 8 and to effectively pursue violations of these obligations with the aim of preventing further violations;
d.) to obtain the required consent of the respective data subject, insofar as personal data is collected, processed or used when using the Service and no statutory or other permissible circumstances apply;
e.) to check data and information for viruses or other malware before sending them to the Provider and to use state-of-the-art virus protection programs; and
f.) to report defects in contractual services to the Provider by e-mail immediately (at the latest on the following working day) after becoming aware of them.
13.2. The Customer is not entitled: to gain access to non-public areas of the Service or the underlying technical systems.
13.3. The Customer shall be obliged to prevent unauthorized access by third parties to the protected areas of the Software by taking appropriate precautions. For this purpose, the Customer shall, to the extent necessary, instruct its employees to comply with copyright law.
14. Data security, data protection
14.1. The Parties shall comply with the applicable data protection provisions and shall oblige their employees employed in connection with the contractual relationship and its performance to maintain data secrecy, unless they are already under a general obligation to do so.
14.2. If the Customer collects, processes or uses personal data, the Customer warrants that it is entitled to do so in accordance with the applicable provisions, in particular the provisions of data protection law, and shall indemnify the Provider against claims by third parties in the event of a violation. Insofar as the data to be processed by the Provider is personal data, this constitutes commissioned data processing. The Provider shall comply with the legal requirements of commissioned data processing and instructions of the Customer (e.g. to comply with deletion and blocking obligations). The Customer is obliged to observe the details of the commissioned data processing contract (GCP). The conclusion of a GCU is a prerequisite for the use of the Service. It must be concluded between the Parties for the entire duration of use.
14.3. The obligations under clauses
14.1 and 14.2 shall continue to apply as long as Customer Data is within the Provider's sphere of influence, even beyond the end of the Agreement.
15.1. The Provider reserves the right to change the Service provided free of charge, to make new Service available free of charge or against payment and to discontinue the provision of Service provided free of charge. The Provider will take into account the legitimate interests of the Customer.
15.3. The Customer shall be notified of such changes by e-mail at least 30 calendar days before the planned entry into force of the changes, provided that the adjustment is accompanied by a restriction in the usability of previously generated data or other not only insignificant disadvantages (e.g. adjustment effort). If the customer does not object within 30 days of receipt of the notification and continues to use the service even after the expiry of the objection period, the changes shall be deemed to have been agreed with effect from the expiry of the period. In the event of an objection, the contractual relationship shall be continued under the previous conditions. In the event of an objection, the Provider is entitled to terminate the contractual relationship subject to a notice period of 1 month. In the notification of change, the customer will be informed of his right to object and of the consequences.
16.1. The parties shall maintain secrecy with regard to all information to be treated as confidential which has come to their knowledge within the framework of the contractual relationship or shall only use such information vis-à-vis third parties - irrespective of the purpose - with the prior written consent of the respective other party. Information to be treated as confidential shall include information expressly designated as confidential by the party providing the information and such information whose confidentiality results from the circumstances of the transfer.
16.2. The obligations under Section 16.1 shall not apply to such information or parts thereof for which the receiving Party proves that it
a.) was known or generally accessible to it prior to the date of receipt or becomes known after the date of receipt by a third party lawfully and without any obligation of confidentiality;
b.) were known or generally available to the public before the date of receipt; or
c.) became known or generally available to the public after the date of receipt without any responsibility on the part of the party receiving the information.
16.3. Public declarations of the Parties on cooperation shall be made only by prior mutual consent. Customer is not entitled to act as Provider's representative or trading partner. The Customer is not entitled to use information about an intended or existing contractual cooperation for reference or marketing purposes without the Provider's prior consent.
16.4. The obligations under Section 16.1 shall continue to exist for an indefinite period of time beyond the end of the contract, as long as an exceptional circumstance under Section 16.2 is not proven.
17.1. The Provider is liable in accordance with the legal regulations
a.) in case of intent or gross negligence,
b.) according to the regulations of the product liability law,
c.) to the extent of a guarantee assumed by the Provider, as well as
d.) in case of injury to life, body or health of a person.
17.2. In the case of property damage and financial loss caused by other negligence, the Provider and its vicarious agents shall only be liable in the event of a breach of a material contractual obligation, but the amount of liability shall be limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract; material contractual obligations are those whose fulfillment characterizes the contract and on which the Customer may rely (hereinafter referred to as "cardinal obligation").
17.3 Notwithstanding the provision in Section 17.1, the Provider's liability in the event of a slightly or normally negligent breach of a cardinal obligation proven by the Customer shall be limited in amount for all damage events falling within the same contractual year in accordance with the following provision:
a.) The maximum liability amount per contract year is 100% of the remuneration paid by the Customer in the year of the damage event, but not more than 100,000 euros.
b.) If the maximum liability limit is not exhausted in a contract year, this does not increase the maximum liability limit for the following contract year. For the purposes of the foregoing, a contract year shall be the first twelve months from the date of provision in accordance with the individual order and each subsequent twelve-month period.
17.4. Liability for damages without fault for defects which were already present at the time of conclusion of the contract shall be excluded.
17.5. Subject to the provisions of Section 17.1, the Provider shall not be liable for the loss of Customer data if the damage is due to the Customer's failure to perform data backups in accordance with Section 10.3 and thereby to ensure that lost Customer data can be restored with reasonable effort.
17.6. The above limitations of liability shall also apply in the event of fault on the part of a vicarious agent of the Provider as well as to the personal liability of the Provider's employees, representatives and bodies. 17.7 For telecommunication services the limitations of liability according to § 44a TKG remain unaffected.
17.8. Insofar as the Service is provided free of charge, the Provider assumes no liability for damages resulting from the use of the Service, except in cases of gross negligence or intent. Liability under the Product Liability Act is not excluded even in the event that the Service is provided free of charge.
18. Term, Termination
18.1. Unless otherwise agreed, the agreement on the respective individual order shall be concluded for a period of 12 months (contract year) and shall enter into force upon agreement on the individual order.
18.2. Unless otherwise agreed, the individual order may be terminated by either party at any time in writing with 3 months' notice to the end of a contractual year. If it is not terminated by the end of a contractual year, the contract shall be extended by a further 12 months in each case. Termination of the individual order shall also include termination of the user account and, if applicable, of all users provided for end customers of the customer as of the next possible date. All other agreements of the contractual relationship in connection with the individual order and these usage agreements, in particular the SLA, shall be deemed terminated at the same time. The GCU shall end at the same time, but not as long as Customer Data is still within the Provider's sphere of influence (see 14.3).
a.) the other party has applied for the opening of insolvency proceedings or intends to do so within the next 14 calendar days;
b.) the opening of insolvency proceedings has been applied for by third parties;
c.) the other party has to stop payments due to payment difficulties;
d.) measures have been taken against the other party in connection with payment difficulties in order to satisfy third-party creditor claims; or
e.) the other party has agreed to agreements for the satisfaction of third party creditor claims in connection with the payment difficulties.
18.4. Good cause entitling the Provider to terminate the Agreement without notice shall also be deemed to exist if the Customer is in default with the payment of the remuneration or a not insignificant part of the remuneration pursuant to Section 12 for two consecutive months, or is in default with the payment of the remuneration in a period extending over more than two months in an amount equal to the remuneration for the last two months prior to the notice of termination. In the event of an extraordinary termination for which the Customer is responsible, the Provider may demand immediate lump-sum compensation in the amount of 50% of the monthly basic fee remaining until the end of the regular contract term. The Customer reserves the right to prove a lower damage, the Provider the right to prove a higher damage.
18.5 Upon termination of the contractual relationship, all relevant authorizations and registrations of the Customer shall automatically end at the same time.
19. Obligations upon and after termination of the individual order
19.1. The Provider shall delete the Customer data from all systems of the Provider one month after the termination of the individual order, unless legal retention periods are opposed. The Customer is obligated to export and back up the Customer Data on its own responsibility in due time before termination of the Individual Order, or expiration of the aforementioned period. Upon Customer's request, Provider shall support Customer in this regard against remuneration.
19.2 In the event of termination of the Individual Order, the Provider shall endeavor to support the Customer as best as possible in the changeover to another service provider against remuneration. The parties shall agree on details in a separate migration agreement.
20. Final Provisions
20.1. The contractual relationship shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
20.2. The place of performance and the exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be Nuremberg.
20.3. Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions. The ineffective provision shall be replaced by the contracting parties by mutual agreement by a legally effective provision which comes closest to the economic sense and purpose of the ineffective provision. The above provision shall apply mutatis mutandis in the event of loopholes.
Last update: 01.11.2021