SaaS Terms and Conditions
Preamble
The Provider (Brandificaiton GmbH, Bucher Str. 5, 90419 Nuremberg, Germany) makes a software solution available for use by corporate customers (hereinafter, the “System User”). This software, which is protected under copyright laws for the benefit of the Provider and/or its system partners, involves a web-based software. The System User has evaluated the software solution and found it to be entirely suitable for the System User’s tasks and business processes. The Provider shall make this software available for use via the Internet as a SaaS [Software-as-a-Service “SaaS”] solution. The System User and its users (hereinafter, “Users”) wish to use the software as a SaaS solution.
On this backdrop the contracting parties hereby conclude the following Software-as-a-Service (SaaS) Contract (hereinafter, “Contract”):
1. Subject matter of the contract / Provider’s performance obligations
1.1 The subject matter of the contract is the program package “Brandification Touchpoint Software”. The individual program modules contained in the program package “Brandification Touchpoint Software” are specified on the website Brandification.com. The software “Brandification Touchpoint Software” and the program modules identified at Brandification.com shall subsequently be referred to as “Contract Software”.
1.2 The Provider shall make available to the System User, or through a third party engaged by Provider, the Contract Software that is conclusively described at cxomni.net and in the user documentation for use via the Internet. Consequently, the System User shall obtain the technical potential and a license to gain access over the Internet to the Contract Software, which is hosted on a central server, and to use the functionalities of the Contract Software within the framework of this Contract. The System User may use the application software for its own purposes, and for processing and storing the System User’s data. The System User shall obtain an authorization to pass on this licensing to end-users (hereinafter, “Users”) within the permissible scope of services.
1.3 Delivery for the Provider’s contractual services is located at the router port of the computer center used by the Provider. Not included in the subject matter of this Contract is the System User’s connection to the Internet, the maintenance of the network connection, and obtaining and providing the hard- and software required on the part of the System User or for its own account.
1.4 The Contract Software is available seven days a week and 24 hours per day (“Service Times”). The average availability during Service Times is 98.5% as a monthly average. During the remaining times (“Maintenance Times”) the application can nevertheless be available if necessary with interruptions and limitations; however, there is no right to demand use of the application. In the event that maintenance work becomes necessary during Service Times and the application is therefore unavailable, the Provider shall timely inform the System User concerning this as far as possible.
1.5 The Provider shall transmit to the System User the required access data for identification and authentication for using the System User administration area of the application (“System User Backend”). It is not permissible for the System User to give this access data to third parties if this does not involve an additional account identified to the Provider that was taken into account in calculating the fee. The System User shall inform the Provider about additional users for the System User Backend prior to their commencing their use. If agreed, the Provider shall undertake a corresponding adjustment of the fee calculation.
1.6 The Provider shall make available for the System User in the accessible software solution or at cxomni.net German language user documentation in the form of help information exclusively in electronic form.
1.7 The Provider shall make available to the System User the storage space conclusively described at cxomni.net and shall undertake to secure the data transferred. The Provider shall employ virus scanners and firewalls so as to impede and/or prevent unauthorized access to the System User’s data and the transmission of viruses to the extent that this is possible with reasonable commercial and technical expense. However, the System User is aware that complete protection against damaging data is not possible. In the case that a threat cannot be removed by reasonable technical and commercial means with a likely favorable outcome, the Provider is entitled to delete the System User’s data (or for its account) that is corrupted with damaging content. The Provider shall inform the System User about this deletion.
1.8 To the extent that the System User transmits data—irrespective of the form—to the Provider, the System User shall produce backup copies of this data on its own data carriers. The Provider shall routinely backup its servers and protect against access by unauthorized third parties with reasonable technical and commercial expenditure. The Provider shall ensure data backup of the data sets (file system and databases) in the course of a standard procedure. Should the System User desire additional security measures, these are possible in return for separate fees. In the event of that data loss nonetheless occurs, the System User shall once again transfer the affected data to the Provider’s servers. The System User is solely responsible for complying with storage periods as required under commercial and tax law.
1.9 The Provider shall undertake support for the Contract Software, in particular the diagnosis and removal of defects within a reasonable time period. Defects are material deviations from the contractually stipulated specifications. Additional support services may be rendered by the Provider in return for separate remuneration.
1.10 The Provider is not obligated to perform any additional services insofar as these are not expressly mentioned above. In particular the Provider is not obligated to render installation, set up, consulting, adaptation and/or training services as well as the creation and delivery of individualized programming or add-on programs if these are not expressly specified at cxomni.net.
2. Rights of Use
2.1
The Provider grants to the System User, for the term of this Contract
and for consideration, a non-exclusive, non-transferable and
non-sublicenseable right to use the Contract Software on the system in
the Provider’s computer center. There will be no transfer of the
Contract Software to the System User. To the extent that the Provider
makes available new versions, updates or upgrades of the Contract
Software during the term of this Contract, the right of use set out
above shall apply in the same manner for such upgrades. However, the
Provider is not obligated to provide new versions, upgrades or updates
if these are not necessarily required for removing defects or unless
otherwise agreed elsewhere in this Contract. Beyond the purposes of this
Contract the System User is not authorized to use, duplicate, download
or make accessible to third parties outside the agreed circle of users
the Contract Software or data other than the System User’s own data.
2.2 For every separate instance in which the System User culpably
allows use of the Contract Software by a third party, the System User
must in each case pay compensatory damages in the amount of the
remuneration that would have accrued in the case of concluding a
contract for an individual user for an ordinary term of two years. The
System User retains the right to prove that there are no damages or that
there is a materially lesser damage amount. All other rights of the
Provider shall remain unaffected by the above provision.
2.3 In the
event of unauthorized use and/or unauthorized use that has been allowed
to occur, the System User must immediately communicate to Provider, upon
Provider’s request, all information for asserting claims against the
user, in particular the user’s name and address.
2.4 If use of the
Contract Software according to the Contract is impeded by third party
industrial property rights without fault on the part of the Provider,
Provider is entitled to refuse performance of the services affected
thereby. The Provider shall promptly inform the System User of this and
enable access to the latter’s data in an appropriate manner. In this
case the System User is not obligated to make payment. Other claims or
rights of the System User remain unaffected hereby.
3. System User Obligations
3.1
The System User shall fulfill all of the obligations necessary for
rendering the services and implementing this Contract in a timely,
complete and technically proper manner.
3.2 The System User shall
make available a responsible employee to be identified by name as a
contact person. This contact person shall in particular provide the
information necessary for implementing this Contract and is deemed
authorized to make legally binding decisions. The System User may
designate a different or an additional contact person. Changes made in
respect to the individual acting as a contact person must be promptly
communicated to the Provider.
3.3 In addition, the System User has
sole responsibility for ensuring that the System User and its Users have
at their disposal an Internet connection and suitable soft- and
hardware features and/or a configuration according to the provisions in
the description “System Requirements” at cxomni.net. The operation and
maintenance of these technical requirements lie solely within the System
User’s sphere of responsibility.
3.4 The System User shall protect
the user and access authorizations and identification and authentication
safeguards assigned to System User and/or its Users from being accessed
by unauthorized third parties and shall not transfer this information
to unauthorized users. As soon as the System User has an indication that
the use and access authorizations were unlawfully attained by a third
party or could be misused, the System User is obligated to immediately
inform Provider of this for purposes of mitigating the damage.
3.5
In addition, the System User shall obtain the required consent of the
respective affected party if, within the context of using the Contract
Software, the System User collects, processes or uses personal data, and
no statutorily-based elements granting permission impinges upon this
use of personal data. The System User shall also otherwise observe all
other statutory requirements and the requirements of data protection
law.
3.6 The System User shall always pay the remuneration by the due date.
3.7 The System User shall in no way use or allow the Contract Software
to be used in an abusive manner, and in particular for transmitting
content that contains unlawful subject matter. The System User shall
also refrain from every unauthorized attempt, or attempting by means of
non-authorized third parties to retrieve information or data or
interfere or allow interference in programs that are operated by the
Provider or encroach upon data networks of the Provider without
authorization.
3.8 The application is programed for online operation
and will be set up individually for the System User. Therefore the
application must be tested prior to use with current browsers and
plug-ins and evaluated for potential malfunctions. The System User
commits to carrying out necessary tests and to informing the Provider
promptly of the occurrence of malfunctions.
3.9 In describing,
isolating, detecting and providing notice of malfunctions, the System
User must observe the instructions furnished by the Provider. If
necessary, the System User must use the Provider’s checklists.
3.10
The System User must use best efforts to precisely state the nature of
malfunction reports and questions and draw on competent employees for
this purpose.
3.11 The System User shall promptly inform the
Provider in writing of errors in the services that are the subject
matter of the contract and in so doing state how and under which
circumstances the error or the defect occurs and shall actively support
the Provider in troubleshooting. If it is determined, subsequent to
analysis of the System User’s defect report by the Provider that the
defect did not occur within the Provider’s sphere of responsibility, the
Provider may invoice the System User for the costs of analyzing the
error report at the respective, applicable prices. This does not apply
if the System User could not recognize—even when applying the care
required—that the malfunction did not occur within the Provider’s sphere
of responsibility.
3.12 In the course of using the Contract
Software and the services that are the subject matter of the Contract,
the System User shall comply with all applicable laws and other legal
regulations of the Federal Republic of Germany. In particular the System
User is prohibited from uploading data or content that violate legal
regulations and that infringe on third party industrial property rights
and copyrights or other third party rights. The System User shall be
responsible for the data and content made available by the System User.
The Provider shall not evaluate the content either for its accuracy nor
for being free of viruses nor for technical processability.
3.13 The
System User shall backup the data transmitted to the Provider regularly
and commensurate with the risk, however at least on a daily basis and
create backup copies so as to ensure reconstruction of data and
information in the case of their loss.
3.14 The System User shall
check the data and information for viruses prior to sending it and
employ virus protection programs conforming to the state of the art.
Finally, the System User shall regularly backup its data sets located in
the system by means of downloads up until the date the Contract
terminates, since it cannot be precluded that it will no longer be
possible for the System User to access these data sets subsequent to
termination of the Contract.
3.15 If a third party asserts a legal
violation by virtue of the data or content made available by the System
User, the Provider is authorized to block the content either entirely or
preliminarily if legitimate doubt exists, by reason of objective
indicators, related to the legality of the data and/or content. In this
case the Provider shall request that the System User discontinue the
legal violation or demonstrate the legality of the content within a
reasonable notice period. If the System User does not comply with this
request, the Provider is entitled, without prejudice to other rights and
claims, to terminate the Contract for cause without observing a notice
period. Expenses accruing for the Provider on account of the measures
mentioned can be invoiced by the Provider for the account of the System
User at the Provider’s respective current prices. If the System User is
responsible for the legal violation, the System User shall compensate
the Provider for the damages arising therefrom and to this extent
indemnify the Provider for any claims of third parties. Further rights
remain reserved.
3.16 Moreover, the System User is obligated to
immediately and without charge carry out all relevant cooperative
participation, in particular if the Provider makes request for this and
the measures required do not exceed a reasonable expense.
3.17 In
the case of a serious or other violation of the System User’s
obligations arising from this Contract, as well as repeated violations,
the Provider is entitled at the Provider’s option to discontinue the use
of the contractual services by the System User entirely, in part or
temporarily, or to terminate the contractual relationship for good cause
without observing a notice period. Expenses accruing for the Provider
on account of the measures mentioned can be invoiced by the Provider for
the account of the System User at the Provider’s respective current
prices. If the System User is responsible for the legal violation, the
System User is obligated towards the Provider to pay compensation for
the damages arising therefrom.
4. Remuneration
4.1
The remuneration for using the Contract Software consists of a monthly
use fee depending on the intensity of use (edition / number of Users).
Some editions contain an additional—as presented under cxomni.net—set up
fee for standardized company-based adjustments and training. To the
extent that the Provider renders additional services not expressly
mentioned in this Contract, the prices applicable for this are the
Provider’s respective current prices or offers as are separately agreed.
The price lists may be reviewed at the Provider’s premises at all
times.
4.2 The System User must pay for use of the Contract Software
under the access data provided to the System User even if this occurs
by way of unauthorized third parties. A requirement for the Provider’s
claim for remuneration is evidence that the System User is responsible
for the third party’s use. The obligation to pay remuneration exists
even if the System User had a reasonable suspicion that third parties
had become aware of the access data and the System User did not
immediately inform the Provider of this. However, the System User is not
obligated to pay remuneration for use by unauthorized parties if the
act of use occurred after the System User informed the Provider about
the third party becoming aware of the access data.
4.3 The ongoing
remuneration payments shall be due and payable annually in advance on
the initial registration date. Other services shall become due and
payable after rendering the service and receipt of the invoice by the
System User.
4.4 All remuneration and prices mentioned are
understood to be in addition to the respective valid statutory value
added tax. This tax shall be invoiced in addition to the remuneration.
4.5 To compensate for increases in personnel and other costs, the
Provider has the right to modify the prices and remuneration for the
contractual services. However, such a price modification is permissible
no sooner than twelve months subsequent to conclusion of the Contract
and is permitted only once per year. The Provider shall give the System
User written notice of the modification not later than six weeks prior
to the change becoming effective. For the case that the System User does
not accept the price increase, the System User is entitled to terminate
the Contract in its entirety with a notice period of one month at the
end of a calendar month if the price increase amounts to more than 10%
of the prior price. In the case of a termination, the prior prices shall
apply until the termination becomes effective.
4.6 The System User
may only offset or assert a right of retention for non-appealable or
undisputed claims. The System User can only assign its claim arising
from this Contract to a third party with the written consent of the
Provider.
5. Default
5.1 During a period of
delayed payment on the part of the System User in an amount that is
material, the Provider is entitled to block access to the Contract
Software. In this case the System User remains obligated to pay the
monthly remuneration.
5.2 If the System User is in default:
5.2.1 for two consecutive months with payment of the remuneration or a material part of the remuneration; or,
5.2.2 is in default with payment of the consideration in a sum that
amounts to the consideration for two months within a time period that
extends over more than two months, the Provider is entitled to terminate
the Contract without observing a notice period and to demand a flat
compensatory damage amount that is immediately due and payable in one
lump sum in an amount of one quarter of the remaining monthly prices up
to the expiration of the regular Contract term.
5.3 The damage
amount must be increased or decreased if the Provider demonstrates a
higher amount or the System User demonstrates a lower damage amount.
5.4 The Provider retains the right to assert additional claims for default in payment.
5.5 If the Provider is in default with making operational software
available, liability is determined according to item 7. The System User
is only then entitled to withdraw from the Contract if the Provider does
not comply with a reasonable grace period set by the System User, which
grace period must be at least three weeks.
6. Modifications in services provided
6.1
The Provider can modify the services for the System User at any time in
a reasonable manner. A modification is then in particular reasonable if
it becomes necessary for a good cause reason such as for example,
through an interruption of services being rendered by sub-contractors,
and the features of the services as described at cxomni.net continue to
be materially fulfilled. The Provider shall inform the System User in
writing or via e-mail concerning the modification at least six weeks
prior to its becoming effective.
6.2 Irrespective of this the
Provider is at all times entitled to modify or supplement its offering
of services or parts thereof. The Provider shall give the System User
written notice or notice via e-mail of the modification or
supplementation not later than six weeks prior to the change becoming
effective. The System User can object to the modifications in writing or
via e-mail, observing a notice period of two weeks from receipt of the
notice of a modification. If the System User does not object, the
modifications and supplementations shall become an integral part of the
Contract. The Provider shall call attention to the consequences of the
System User’s response in the notice of a modification. If the System
User objects to the modification within the notice period, the Provider
may terminate the Contract for convenience at the next possible date.
7. LiabilityThe Provider is conclusively liable, irrespective of the legal grounds as follows:
7.1 For defects in the services that are the subject matter of the Contract, the Provider shall be liable according to this item 7 provided that disruptions are not based on limitations in availability.
7.2 If the services to be rendered under this Contract by the Provider are defective, the Provider shall, according to the Provider’s option, remedy the defect or render the services again within a reasonable time period and subsequent to receiving a notice of the defect. Where third party software is used that the Provider has licensed for use by the System User, the liability for defects consists of obtaining and installing generally available upgrades, updates or service packs.
7.3 If the rendering of services also fails for reasons for which the Provider is responsible within a reasonable time period set by the System User, the System User can reduce the agreed remuneration by a reasonable amount. This right to reduce the remuneration is limited in amount to the monthly remuneration accruing for the defective part of the services.
7.4 If the reduction under the above item 7.3 reaches the maximum amount listed in item 7.3 in two consecutive months or in two months of a quarter, the System User can terminate the Contract without observing a notice period.
7.5 The System User shall promptly inform the Provider in writing of the occurrence of defects.
7.6 The System User shall support the Provider without charge in removing the defects and in particular, shall make available to the Provider all necessary documentation, data, etc. that the Provider requires for analyzing and remedying the defects.
7.7 The Provider is obligated to promptly remedy defects in the software that is the subject matter of the Contract. In the course of remedying the defect, the Provider shall ensure that an interruption of the connection between the Provider and the System User does not occur to the extent that this is technically possible. No-fault liability according to § 536a, 1st Alt. German Civil Code [Bürgerliches Gesetzbuch, “BGB”] is excluded. The legal guarantee provisions of the law of service contracts (§§ 611 et seq. BGB) shall apply to the remaining obligations of the Provider according to §§ 1 through 2 of this Contract.
7.8 The Provider is not liable for the functional capacity of the lines to its server, for power failures and failures of servers that are not within the Provider’s sphere of influence.
7.9 The Provider is not liable for the functional capacity and quality of the content that the System User or its Users create themselves by means of the application. Before the System User makes content available online, the System User must ensure the functional capacity and quality of the content by means of adequate testing. No liability shall arise for the Provider or the Provider’s vicarious agents for defects of any kind in the content produced while using the application (e.g. PDF exports) if the defects are not based on an error in the application itself. The System User shall indemnify the Provider and its vicarious agents for liability for defective content in relation to third parties, in particular the System User’s customers.
7.10 The Provider is not responsible for content (e.g. texts, images, layouts, illustrations) that the System User makes available or for content that result from third party use, in particular Users of the System User company.
7.11 For slight negligence, the Provider shall only be liable for violating material contract obligations as well as for personal injuries and according to the Product Liability Act. Otherwise, the Provider’s pre-contractual, contractual and non-contractual liability is restricted to intentional acts and gross negligence, in which case this limitation of liability also applies in the case of culpability of the Provider’s vicarious agent.
7.12 For the fault of other vicarious agents, the liability is limited to five times the monthly consideration as well as limited to those damages the occurrence of which must typically be expected within the scope of a Software-as-a-Service.
7.13 Liability for data loss is limited to the typical expenses of restoring the data that would occur where backup copies are routinely made commensurate with the risk.
7.14 The Provider shall be liable without limitation for personal injury for which the Provider is responsible. For property damage for which the Provider is responsible, the Provider shall reimburse for the expense of restoring or new acquisition of the property up to an amount of no greater than the contract value. For damage to data storage materials, the obligation to provide reimbursement does not include the expense for replacing lost data.
7.15 The limitation of liability under 7.14 shall not apply for cases of intentional acts, gross negligence or the violation of material contract obligations. However, for slight negligence in violating material contract obligations, the obligation to reimburse is limited to the damages that are typical and foreseeable for the Contract.
7.16 Further and different claims and rights of the System User than those expressly mentioned in this item 7 due to defects in the contractual services do not exist insofar as the Provider is not additionally liable on the basis of mandatory statutory provisions.
8. Third party industrial property rights
8.1
Insofar as the System User is held liable by a court for infringing
upon third party industrial property rights and copyrights due to using
the services rendered by the Provider in accordance with the Contract,
the Provider shall indemnify the System User for these claims under the
following preconditions:
8.1.1 The System User shall immediately
inform the Provider in writing as soon as the System User becomes aware
of the claims being asserted, and
8.1.2 The System User shall grant
to the Provider control over the defensive measures and settlement
negotiations. In particular the System User shall not provide any
judicial or non-judicial acknowledgment concerning the third party
claims, and
8.1.3 The System User shall, in a reasonable manner, support the Provider in defending against or resolving the claims.
8.2 The Provider is only then obligated to compensate the System User
for damages due to infringement of third party industrial property
rights beyond those under the above-mentioned item 8.1 if the Provider
is at fault for the infringement.
8.3 The System User’s rights
according to this item 8 do not exist to the extent that the
infringement results from the fact that the System User:
8.3.1
Carried out a modification of the contractual services that were not
approved in writing or in another manner by the Provider within the
scope of this Contract or,
8.3.2 Uses the contractual services in a manner other than for the purposes of this Contract, or
8.3.3 Combines the contractual services with hard or software that does
not conform to the requirements set out in the description “System
Requirements”.
8.4 The parties to the Contract acknowledge that
parts of the Contract Software generate digital content. The Provider
does not assume any liability for the production or use of this content
being free from violations of the law and in particular infringements of
copyright. No content may be generated that infringes upon the rights
of third parties, in particular copyrights, trademark rights, ancillary
copyrights or rights to distinctive signs. No content that violates the
law or public policy may be generated with the application. In
particular this includes content within the meaning of §§ 130, 130 a and
131 of the German Criminal Code [Strafgesetzbuch, “StGB”] that serves
to incite hatred and violence, instruct others in the commission of
crimes or glorifies or trivializes violence, is sexually offensive or
pornographic within the meaning of § 184 StGB, and that is likely to
seriously endanger children or adolescents in their morals or compromise
their wellbeing. The Provider is not obligated to monitor the
generation of content by means of the application with respect to
possible copyright infringements or other violations of rights. The
System User shall expressly indemnify the Provider and its vicarious
agents from all possible claims, in particular third party copyright
claims that are based on a use of the Contract Software contrary to law,
or that result from legal disputes under data protection or copyright
or other laws associated with use of the application. If the System User
recognizes or should recognize that there is a danger of such
violation, the System User is obligated to immediately intervene so as
to prevent the legal violation.
9. Data protection, confidentiality and data security
9.1
Both contracting parties shall comply with the respective applicable
provisions (in particular those effective in Germany) under data
protection law and shall obligate the employees engaged in connection
with the Contract to maintain data secrecy to the extent that these
employees are not already generally obligated in this regard.
9.2
Furthermore, both contracting parties shall comply with the provisions
that are applicable for the contracted data processing and for the
computer center and shall undertake the required technical and
organizational measures for protecting personal data within the meaning
of § 9 of the Federal Data Protection Act [Bundesdatenschutzgestz,
“BDSG”].
9.3 If the System User itself, or by way of the Provider,
processes or uses personal data, the System User is responsible for the
Systems User’s authorization to do this according to applicable legal
provisions, in particular data protection provisions, and shall
indemnify the Provider for all third party claims in the case of a
violation.
9.4 It is hereby clarified that the System User, both
generally in the contract relationship and also within the meaning of
data protection law, remains the “owner of the data” (§ 11 BDSG). The
System User is solely entitled, with respect to the power of disposal
and ownership, to all of the system user-specific data (data
input/output and processed/stored data). The Provider shall not
undertake any control of the legal permissibility of collecting,
processing and using the data stored for the System User; this
responsibility is exclusively assumed by the System User. The Provider
is only authorized to process and/or use the System User-specific data
exclusively according to the System User’s instructions (e.g. for
complying with obligations to delete and block) and within the scope of
this Contract; in particular the Provider is prohibited from making the
System User-specific data accessible to third parties in any manner
without the prior written consent of the System User. This also applies
if and to the extent that a modification or supplementation of the
System User-specific data occurs. However, the Provider is entitled to
process and use the data of the System User within the framework of what
is permissible under data protection law over the course of this
Contract’s legal validity.
9.5 As a general rule the System User is
not entitled to demand access to the premises with the Contract Software
and other system components. Remaining unaffected hereby are rights of
access of the System User’s data protection officer, subsequent to
written notification, for the purpose of inspecting compliance with
requirements according to the Appendix of § 9 BDSG, as well as any other
of the Provider’s handling of personal data according to statutes and
contract within the framework of operating the Contract Software under
this Contract.
9.6 The contracting parties shall only use for
purposes of implementing this Contract all information and data that
they receive for performing this Contract, which has been designated as
confidential; and, for as long as and to the extent that same has not
become generally known, shall treat such information and data as
confidential. The contracting parties shall impose a corresponding
obligation upon their employees affected by this Contract. These
obligations also survive subsequent to the termination of this Contract
for an additional two years calculated from the date that the Contract
terminates.
9.7 The Provider can award sub-contracts but must impose a corresponding obligation on the sub-contractors.
9.8 The Provider guarantees the security of the data set up by the
System User under data protection law and shall comply with statutory
regulations on data protection—in particular the Teleservice Data
Protection Act and the Federal Data Protection Act.
9.9 With this,
the Provider shall inform the System User that Provider is collecting,
processing and using personal data to the extent that this is necessary
for implementing the Software-as-a-Service (SaaS) Contract. The System
User is in agreement with its data being stored, transmitted, deleted
and blocked by the Provider to the extent that this is necessary,
considering the legitimate interests of the System User and the purpose
of this Contract.
10. Term, termination
10.1
The term of this Contract shall be for 24 months and commences on the
date of the Provider’s starting operations with respect to installing
the application. This is complete when the application is functional and
is available to the System User for operational use irrespective of
when the System User administratively installs the application,
irrespective of smaller design-based modifications and irrespective of
the scheduled date for commencement for the company’s internal use.
Making available the agreed Software-as-a-Service (SaaS) services shall
take place on this date. If the Contract is not terminated by the due
date for termination, the Contract is extended by an additional 12
months respectively, commencing with the date that the prior contract
term expires.
10.2 The contractual relationship can be terminated by
both contracting parties with a notice period of 3 months at the end of
the Contract term, however, this is effective only after an initial
24-month minimum term.
10.3 The right to termination for good cause
remains unaffected hereby. A good cause reason for termination exists in
particular if:
10.3.1 A contracting party violates material
obligations or repeatedly violates non-material obligations arising from
the Contract, and also does not remedy the violation after request made
by the other contracting party within a reasonable notice period, or
10.3.2 A contracting party’s adherence to the Contract is not reasonable as a consequence of force majeure, or
10.3.3 Insolvency proceedings have been opened with regard to the
assets of the other contracting party or opening of bankruptcy
proceedings is directly pending.
10.4 All terminations under this Contract must be in writing to be effective.
10.5 Upon termination of this contractual relationship, irrespective of
the reason, the parties are obligated to properly handle the
contractual relationship. In particular the Provider shall for this
purpose:
10.5.1 Hand over to the System User or a third party
designated by the latter at the Provider’s expense, the System User’s
data stored within the framework of the Contract, and databases
potentially created within the scope of the Contract no later than four
weeks after the Contract’s termination by means of both data remote
transmission and also on data carriers in a form selected by the
Provider, and
10.5.2 Subsequent to confirmation of successful
transfer, shall immediately delete the System User’s data and all copies
made thereof.
11. Force majeure
11.1 The
Provider is exempt from the duty to perform arising from this Contract
if and to the extent that the non-performance of the services is
attributable to the occurrence of force majeure circumstances subsequent
to concluding the Contract.
11.2 Deemed to be force majeure
circumstances are for example, wars, strikes, unrest, expropriation,
storms, floods and other natural catastrophes and other circumstances
for which the Provider is not responsible (in particular water leaks,
power failures and disruption or destruction of data transmission
lines).
11.3 Each contracting party must promptly inform the other
party in writing concerning the occurrence of a force majeure event and
likewise inform the other contracting party as soon as the force majeure
event no longer exists.
12. Closing provisions
12.1 All agreements that constitute a modification, supplementation or specification of these contractual terms, as well as assurances, guarantees and stipulations must be in written form. Guarantees only then qualify as guarantees within the meaning of the law if they are expressly designated as guarantees. If declarations, supplementations, specifications, assurances and/or guarantees are stated by representatives or agents of the Provider, these are only then binding if the Provider issues a written consent for this purpose.
12.2 The contracting parties may only transfer the rights and duties arising from this Contract with the advanced written consent of the other party.
12.3 The System User’s general terms and conditions shall not apply.
12.4 With respect to all of the legal interactions resulting from this contractual relationship, the contracting parties agree on the application of the law of the Federal Republic of Germany, excluding the UN Purchasing Convention.
12.5 The exclusive venue for all legal disputes arising from this Contract is at the location of the Provider’s company seat. However, the Provider is also entitled to file suit at the location of the System User’s company seat.
12.6 Should a provision of this Contract be or become invalid, the validity of the Contract as to the remainder shall not be affected thereby. The contracting parties are obligated in good faith to make all reasonable efforts to replace the invalid provision with a permissible provision that is equivalent in terms of economic outcome provided that this does not thereby bring about a material modification of the contract terms.
Status date: 1/15/2019