GTC

General Terms and Conditions (GTC) for the performance of services by ELIGO Psychologische Personalsoftware GmbH (hereinafter: ELIGO) – business customers

1. Preamble

1.1 These Terms and Conditions shall apply towards entrepreneurs within the meaning of section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), legal entities under public law or special funds under public law not only for the contractual relationship into which they have been integrated, but also to all future business relations unless we refer to any other terms and conditions.

1.2 Any deviating, conflicting or supplementary terms and conditions of the customer shall not become part of the contract, even if the provider has knowledge of them, unless their applicability is expressly consented to. The provider’s terms and conditions shall also apply if the provider performs the service without reservation despite having knowledge of opposing or deviating terms and conditions or additional terms and conditions of the customer.

2. Offers and prices

2.1 Offers of the provider are subject to change. By accepting an offer, the customer bindingly declares that the customer wishes to order the designated services. The provider shall have the right to accept the contract offer submitted with the customer’s order within one week of receipt. Acceptance can be declared either expressly or by starting to process the order.

2.2 The service shall be provided based on the prices and special terms of the respective contract. The prices stated therein shall be binding.

2.3 Unless otherwise agreed in individual cases, the prices shall be quoted “net” exclusive of statutory value added tax.

3. Deadlines and time periods

3.1 Deadlines and time periods shall be binding if they have been individually agreed as binding in writing by the provider and the customer. Unless otherwise agreed in individual cases, the performance period shall commence upon conclusion of the contract. Insofar as services of third parties are part of the offer, they shall be subject to the reservation of due delivery by such third parties to us. If the services are not available for reasons that were not foreseeable to the provider at the time of conclusion of the contract, or if a supplier fails to deliver to the provider without any fault on the provider’s part, the binding deadlines associated with this shall no longer be effective.

3.2 In the event of a delay in performance, the customer shall only have a right of withdrawal in accordance with the statutory provisions if the provider is responsible for the delay.

4. Object of the contract

4.1 The content/nature and scope of the services owed by the provider shall be stipulated in the respective contract, unless otherwise agreed in individual cases. The customer shall be responsible for the project and its success. The provider shall perform the service in accordance with prevailing professional standards.

4.2 The object of the contract can consist of a one-off service, also to be performed in parts, or may be of a long-term nature.

5. Performance of service

5.1 Unless otherwise agreed in individual cases, the place of performance shall be the provider’s registered place of business.

5.2 The provider shall choose its staff members who are to work on the performance of the service. The customer shall not be entitled to having the services performed by specific staff members of the provider. In making the selection, the provider shall give due consideration to the customer’s interests. The provider shall perform the services through personnel who are qualified to perform the agreed services. If a person employed by the provider to perform the contract is replaced by another person and an induction is required, such induction shall be at the provider’s expense.

5.3 The provider shall determine – in accordance with the object of the contract – the manner in which the services are to be performed.

5.4 The customer shall have no authority to issue instructions to the provider or to the provider’s staff members working on the performance of the service, with the exception of what has been agreed in clause 12.3.

5.5 If the provider is to present the results of the service in writing, only a written presentation shall be authoritative.

6. Obligations of the customer

6.1 The customer shall appoint an expert contact for the provider who can make binding decisions for the customer during execution of the contract (project manager). This contact shall be available for the exchange of necessary information and shall participate in making the decisions necessary for execution of the contract. Required decisions of the customer shall be brought about without delay by the contact and shall be jointly documented in writing by the parties in the immediate aftermath.

6.2 The customer shall ensure that the documents, information, etc. necessary for performing the service, insofar as they are not owed by the provider, are made available to the provider completely, correctly, in good time and free of charge. In addition, the customer shall ensure that they are updated. The provider can assume that these documents, information etc. are complete and correct, unless the provider recognises or must recognise that this is not the case.

6.3 The customer shall be obliged to support the provider where required and to ensure within his or her company environment that all requirements are met for the due and proper execution of the assignment. In addition, the customer shall make sufficient workstations and work equipment available at the provider’s request.

6.4 Unless otherwise agreed, the customer shall store all documents, information, etc. submitted by the provider on the customer’s premises in such a way that they can be reconstructed in the event of damage or loss.

7. Rights of use

Unless otherwise agreed, the provider shall grant the customer the non-exclusive and non-transferable right to use the results of the services performed by the provider under the contract for the customer’s own internal purposes within the scope of the contractually stipulated purpose of use on a long-term basis. These rights shall include the agreed interim results, training materials and aids. All other rights shall remain vested in the provider.

8. Term of contract

8.1 If the contract is concluded for an indefinite period of time, it may be terminated in writing by giving 3 months’ notice to the end of a calendar quarter. Such termination shall be possible for the first time at the end of the calendar quarter following the first calendar quarter after conclusion of the contract. Any agreed minimum term shall not be affected by this right of termination. This shall not apply in each case if otherwise agreed.

8.2. The right to termination for good cause shall not be affected. The following grounds, in particular, shall be considered good cause if they exist for the other party:

  • a. a breach of material contractual obligations by the other party if the breach is not remedied despite a reminder and the setting of a reasonable deadline. Reminders and deadlines shall not be required in the case of unreasonableness;
  • b. any delay in fulfilling a major performance obligation of more than 30 days, provided that a grace period for performing the service was set beforehand with a term of at least 10 days, pointing out the right of termination;
  • c. the institution of insolvency proceedings is rejected for lack of assets;
  • d. the commencement of liquidation;

8.3 Notices of termination shall require written form to be effective.

9. Consideration, payments, set-off and retention

9.1 Unless otherwise agreed in individual cases, payments shall always be due within 14 calendar days after the invoice date without any deductions.

9.2 Any time allowed to the customer for payment shall require a sufficiently available credit limit for each individual order. If the respective order exceeds the available credit limit, the provider shall have the right to perform this and further orders only against advance payment or a security in the form of a performance bond issued by a bank or credit insurer authorised in the European Union. The same shall apply if the provider becomes aware of circumstances after the order confirmation that lead to justified doubts about the customer’s creditworthiness.

9.3 If the customer does not settle a claim in full or in part by the agreed due date, the provider shall be entitled to revoke any discount agreements made as well as agreements on time allowed for payment, for all outstanding claims at that time and to make them due and payable forthwith. The provider shall also have the right to perform further services only against advance payment or a security in the form of a performance bond issued by a bank or credit insurer authorised in the European Union.

9.4 A payment shall only be deemed to have been effected when it has been credited to one of the provider’s bank accounts.

9.5 The provider shall have the right to charge interest at a rate of 5 per cent when the payment becomes due. In the event of default, the provider shall have the right to charge interest at a rate of 8 percentage points above the base interest rate. This shall apply without prejudice to the provider’s right to claim greater damages.

9.6 The customer may only offset or exercise a right of retention against claims that are undisputed or res judicata. The customer may not exercise a right of retention against a counter-right that is not based on a right arising from the contract subject to these General Terms and Conditions.

10. Default in performance

10.1 If the service is not performed in a manner conforming to the contract and if the provider is responsible for this (default in performance), the provider shall be obliged to perform the service in a manner conforming to the contract within a reasonable period of time, in whole or in part, without additional costs for the customer, unless this is only possible with unreasonable effort or expense. Unless otherwise agreed, the provider shall only be under this obligation if the customer notifies the provider of the default in performance in writing and without undue delay, but no later than two weeks after becoming aware of the non-conforming performance of the service. For this purpose, the customer shall adequately observe the performance of services by the provider.

10.2 If the provider is responsible for a non-conforming service and if the provider does not succeed in performing the service in a manner that conforms to the contract even within the grace period set by the customer for reasons for which the provider is responsible, the customer shall be entitled to terminate the contract without notice. This shall apply without prejudice to the right to extraordinary termination for good cause.

10.3 In the event of termination pursuant to clause 10.2, the provider shall be entitled to consideration for the services performed up to the effective date of termination. No entitlement shall arise for services in respect of which the customer demonstrates in a qualified manner within 2 weeks after receipt of the notice of termination that the customer cannot use them and they are of no interest to the customer.

10.4 If the provider is not responsible for a non-conforming service, the provider shall offer the customer a performance of the service that conforms to the contract within the scope of the provider’s possibilities. If the customer accepts this offer, the provider may claim any associated expenses and proven costs.

10.5 The statute of limitations for claims of the customer due to defaults in performance shall be one year from the statutory commencement of the limitation period. This shall apply without prejudice to statutory time limits in the event of a wilful or grossly negligent violation of obligations by the provider, in particular by the provider’s legal representatives or vicarious agents, in the event of deceit as well as in cases of injury to life, limb or health.

10.6 Clause 11 shall apply to any claims for expenses and damages exceeding clauses 10.1 to 10.3 above.

11. Defects

11.1 The statutory provisions shall apply to any defects in the services, unless otherwise agreed below. If the customer is entitled to claims for defects by law, the following provisions shall apply.

11.2 Defects shall be remedied at the provider’s discretion by repair or replacement.

11.3 A limitation period of one year shall be agreed for claims for defects. This shall not apply to liability for damages caused by defects; in this case the provisions on liability shall apply. For claims for damages based on a refused cure, the statutory limitation periods shall only apply if a cure has been requested within the period for claims for defects shortened to one year.

11.4 If the customer should be in default of payment of the agreed consideration at the time of the notice of defects, the provider may refuse a cure until the customer has paid the due consideration to the provider less an amount corresponding to the economic significance of the defect.

12. Liability

12.1 Liability for intent and gross negligence shall be unlimited.

12.2 In the event of a breach of essential contractual obligations due to ordinary negligence, the amount of liability shall be limited to damages that are foreseeable and typical under the contract. Essential contractual obligations shall be obligations the fulfilment of which makes due and proper implementation of the contract possible in the first place and which the injured party can normally expect to be complied with. The limitation period for claims under this paragraph shall be one year.

12.3 Paragraph 12.2 shall not apply to claims arising from injury to limb, health or life, in the case of deceit, in the event of the assumption of a guarantee, in the case of liability for initial incapacity or impossibility for which we are responsible as well as for claims under the Product Liability Act.

12.4. In all other respects, liability – on whatever legal grounds – shall be ruled out.

13. Force Majeure

13.1 Each party shall be temporarily released from its obligation to perform as long as it is prevented from performing the service due to force majeure. This shall also apply in the event that the party is already in default.

13.2 Force majeure shall mean corresponding events within the meaning of section 206 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) as well as any other unusual and unforeseen event, if the party invoking such event did not cause the event, could not expect the event to occur, could not influence its occurrence, could not prevent its consequences despite exercising due care, and is prevented from performing the service for this reason. This shall apply in particular to war, terrorism, riots, pandemics, severe weather, environmental disasters or if the performance is otherwise hindered by a governmental order.

13.3. The party invoking the existence of force majeure shall

  • a. immediately inform the other party in text form of the fact and the reasons for it;
  • b. take the measures necessary to be able to resume the full performance of the party’s obligations as soon as possible with the diligence of a prudent businessman;
  • c. make reasonable efforts to minimise the negative impact on the performance of this contract as far as possible.

14. Miscellaneous

14.1 Any amendments and additions to all contracts concluded between the parties shall only be agreed in writing. Verbal agreements shall only be effective if they are confirmed in writing by the provider within seven days. Fax or e-mail shall suffice to meet the written form requirement.

14.2 The provider and the customer shall be obliged to keep confidential any business and trade secrets as well as other information designated as confidential that becomes known in connection with their contractual relationship or the resulting contractual relations. Such information may only be passed on to persons who are not involved in the conclusion, implementation or processing of the contractual relationship with the contractual partner’s written consent. Unless otherwise agreed, this obligation shall end after the expiry of five years from the date on which the respective information became known, but not before the termination of a contractual relationship existing between the provider and the customer. The contractual partners shall also impose these obligations on their staff members and any third parties deployed.

14.3 Insofar as the provider should act as a processor for the customer pursuant to Art. 28 GDPR, the parties shall conclude a separate processing agreement that complies with the requirements of Art. 28 GDPR and that shall take precedence over these GTCs in the event of any conflicts.

14.4 The contract shall be governed solely by the law of the Federal Republic of Germany. Private international law shall not apply insofar as it can be waived.

15. Place of performance and jurisdiction

15.1 The place of performance for all obligations arising from the contractual relationships of the parties shall be the provider’s registered place of business.

15.2 The sole place of jurisdiction for all disputes relating to this contract shall be at the provider’s registered place of business.

 

GTC for the use of online assessments and other applications provided by ELIGO under the SaaS (Software as a Service) model

1. Preamble

1.1 These Terms and Conditions shall apply towards entrepreneurs within the meaning of section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), legal entities under public law or special funds under public law not only for the contractual relationship into which they have been integrated, but also to all future business relations unless the provider refers to any other terms and conditions.

1.2 Any deviating, conflicting or supplementary terms and conditions of the customer shall not become part of the contract, even if the provider has knowledge of them, unless their applicability is expressly consented to. The provider’s terms and conditions shall also apply if the provider performs the service without reservation despite having knowledge of opposing or deviating terms and conditions or additional terms and conditions of the customer.

2. Offer and prices

2.1 Our offers are subject to change. By accepting an offer, the customer bindingly declares that the customer wishes to order the designated services. We shall have the right to accept the contract offer submitted with the customer’s order within one week of receipt. Acceptance can be declared either expressly or by starting to process the order.

2.2 The service shall be provided based on the prices and special terms of the respective SaaS contract. The prices stated therein shall be binding.

2.3 Unless otherwise agreed in individual cases, the prices shall be quoted “net” exclusive of statutory value added tax.

3. Object of the contract

3.1 The object of this contract is that the provider shall provide the software applications defined in the SaaS contract (hereinafter referred to – even if more than one – as “APPLICATION”) for the use of their functionalities, shall technically enable the use of the APPLICATION and shall grant or procure rights of use for the APPLICATION by the customer against payment of the consideration agreed in the SaaS contract.

3.2 As of the point in time agreed in the SaaS contract, the provider shall make available the APPLICATION agreed in the SaaS contract in its respective current version on a central data processing system or several data processing systems (hereinafter referred to – even if more than one – as “SERVER”) for use in accordance with the following provisions.

3.3 The provider shall make available on the SERVER, as of the time of operational provision agreed in the SaaS contract, STORAGE SPACE to the extent agreed in the SaaS contract for the data generated by the customer through use of the APPLICATION and/or the data required for use of the APPLICATION (hereinafter referred to as (“APPLICATION DATA”). Further details on STORAGE SPACE and APPLICATION DATA shall be defined in the SaaS contract as needed.

3.4 The APPLICATION and the APPLICATION DATA shall be backed up on the SERVER regularly, at least every calendar day – DATA BACKUP –. The customer shall be responsible for observing storage periods under commercial and fiscal law.

3.5 The customer shall be responsible for compliance with the system requirements defined in the SaaS contract on the customer’s side. The provider shall not be responsible for the condition of the required hardware and software on the customer’s side as well as for telecommunication connections between the customer and the provider up to the transfer point.

4. Technical availability of the APPLICATION and access to APPLICATION DATA, response and recovery times

4.1 The provider guarantees an availability of 99 per cent, as a monthly availability mean value during nationwide working days in the time from 08.00 a.m. to 06.00 p.m. Availability shall be measured at the Internet interface of the data centre used by the provider (“measuring point”). Availability is given if the service at the measuring point can be used in a manner conforming to the contract, unless the provider is responsible for the customer’s inability to use the service.

4.2 For the purpose of determining availability, the following times shall not be considered:

  • a. Any non-availability announced with at least one week’s notice in the period from Monday to Friday between 6 p.m. and 8 a.m., during weekends and public holidays observed throughout Germany;
  • b. Any non-availability announced with at least two hours’ notice, if this is necessary to eliminate or avert more than insignificant threats to IT security or data protection at short notice. Non-availability may not exceed a duration of 8 hours per month.

5. Disruption reports/non-fulfilment of major performance obligations

5.1 If the provider does not or not fully meet the obligations agreed in clauses 3 and 4 for the operational provision of an APPLICATION and/or the APPLICATION DATA, the following rules shall apply:

5.1.1 Within the agreed times, the provider shall accept due and proper disruption reports from the customer assigning an identifier, shall allocate them to the disruption categories of the SaaS contract and shall, on the basis of such allocation, implement measures to analyse and eliminate disruptions. At the customer’s request, the provider shall confirm the receipt of the disruption report to the customer and shall notify the customer of the assigned identifier.

5.1.2 The customer shall, to the extent necessary, take measures to circumvent or rectify any disruptions without delay and shall report any remaining disruptions to the provider.

5.1.3 If the provider fails to fulfil the agreed obligations in whole or in part, the monthly usage fee pursuant to clause 10.2 shall be reduced proportionately for the time during which the APPLICATION and/or the APPLICATION DATA were not available to the customer to the agreed extent or the storage space was not available to the agreed extent. Ongoing usage fees pursuant to clauses 10.3 and 10.4 shall only accrue for business transactions that were actually carried out using the APPLICATION despite the restriction or discontinuation of the services. If the provider is responsible for such non-fulfilment, the customer may further claim damages in accordance with clause 13.

5.1.4 No claims shall arise for an only insignificant deviation of the provider’s services from the contractual condition. Neither shall claims arise in the event of a failure of APPLICATIONS in a system and operating environment that was not agreed or due to operating conditions that were not agreed or in the event of errors that arise due to special external influences that are not assumed according to the contract. This shall also apply in the event of subsequent modifications by the customer or third parties, unless this does not impede the analysis and elimination of the defect.

5.2 Any strict liability – liability without fault – of the provider according to section 536a para. (1) of the German Civil Code (BGB) due to defects that already existed when the contract was entered into shall be ruled out, except in the case of a characteristic warranted by the provider (guarantee, section 276 para. (1) of the German Civil Code – BGB).

5.3 A limitation period of one year shall be agreed for claims for defects. This time limit shall not apply to claims for damages due to the violation of claims for defects; in this case the provisions on liability shall apply.

5.4 For functions, services, software or other offers that are expressly made available by the provider as a beta version, any claims for defects shall be ruled out, unless the provider can be accused of intent. By their very nature, beta versions are unfinished products and may have defects. Such defects may result, for example, in the loss of data or the malfunctioning of the APPLICATION. The customer should therefore only use beta versions if the occurrence of such defects does not mean any disadvantage for the customer, in particular if such defects cannot cause any damage for which the customer would want to hold the provider or third parties liable

6. Further services of the provider

Further services of the provider can be agreed in writing at any time. Such further services shall be performed against compensation for proven time expenditure based on the provider’s prices that are generally applicable at the time of the order.

7. Exclusion of services

The following shall not be part of the object of this contract:

  • disruption management of disruptions related to use of the APPLICATION in non-approved environments or with modifications of the APPLICATION by the customer or third parties;
  • disruption management of technical problems of the Internet that cannot be influenced by either party; this shall not apply if and to the extent that the provider also offers the telecommunications service;
  • upgrades of the APPLICATION, i.e. further developed versions with significant functional enhancements;
  • transfer of other new software;
  • elimination of disruptions or failures which are based on the fact that the hardware and software used by the customer is not capable of correctly executing program sequences or correctly processing data sets, in particular of completely and accurately recognising, calculating or running them, due to insufficient technical performance;
  • elimination of disruptions resulting from improper or incorrect operation of the APPLICATION by the customer. The same shall apply to disruptions that are due to the customer’s deploying unknowledgeable personnel for using the APPLICATION;
  • additionally agreed assignments at the customer’s site, consulting and support for modified software, clarification of interfaces to third-party systems, installation as well as configuration support, especially for additional software or hardware.

8. Rights of use for and use of the APPLICATION, rights of the provider if rights of use are exceeded

8.1 Rights of use for the APPLICATION

8.1.1 The customer shall receive non-exclusive, non-sublicensable and non-transferable rights to use the APPLICATION, limited to the term of this contract or the respective APPLICATION, in accordance with the following provisions.

8.1.2 The APPLICATION shall not be transferred to the customer. The customer may use the APPLICATION only for the customer’s own business activities by the customer’s own personnel.

8.1.3 The customer shall use the APPLICATION simultaneously only by the number of persons specified by the customer in the SaaS contract. If a simultaneous use by more than the number of persons specified therein occurs, the customer shall pay a flat additional usage fee defined in the SaaS contract per person and access; other claims of the provider shall remain unaffected.

8.1.4 The customer shall not be entitled to any rights not expressly granted to the customer in the foregoing. In particular, the customer shall not be entitled to use the APPLICATION beyond the agreed use or to have it used by third parties or to make the APPLICATION accessible to third parties. In particular, it is not permitted to reproduce or sell the APPLICATION or to transfer it for a limited period of time, in particular not to rent it out or lend it.

8.2 Obligation of lawful use
The customer shall be liable for ensuring that the APPLICATION is not used for purposes that are racist, discriminatory, pornographic, endanger the protection of minors, politically extreme or otherwise unlawful or in violation of official regulations or requirements, or that corresponding data, in particular APPLICATION DATA, is generated and/or stored on the SERVER. The customer shall indemnify the provider against all claims of third parties resulting from a violation of this clause 8.2, including reasonable costs of legal assessment and representation upon first request.

8.3 Violation of the provisions under clauses 8.1 and 8.2 by the customer

8.3.1 The provider may revoke the customer’s right of use if the customer violates restrictions on use or other regulations for protection against unauthorised use in clauses 8.1 or 8.2 in a manner that is not inconsiderable. The provider shall set the customer a grace period for remedy prior to this. In the event of repetition and in the event of special circumstances which, after weighing the interests of both parties, justify immediate revocation, the provider may also issue the revocation without setting a grace period. The customer shall confirm the discontinuation of use to the provider in writing after the revocation.

8.3.2 If the customer violates the provisions of clauses 8.1 or 8.2 for reasons for which the customer is responsible, the provider may, after revocation, block the customer’s access to the APPLICATION or the APPLICATION DATA if this can serve to demonstrably remedy the violation.

8.3.3 If the customer unlawfully violates clause 8.2.2, the provider shall also be entitled to delete the data or APPLICATION DATA affected thereby. In the case of an unlawful violation by users, the customer must, without delay, make available to the provider all information necessary to assert claims against the user, in particular the user’s name and address, upon request.

9. Liability for third party rights

9.1 The provider shall be liable towards the customer for any infringement of third-party rights caused by its services only to the extent that the services are used by the customer in a manner conforming to the contract, in particular in the contractually intended usage environment. Liability for the infringement of third-party rights shall, moreover, be limited to third party rights within the European Union and the European Economic Area as well as at the place of contractual use of the service. Clause 5.1.4 sentence 1 shall apply mutatis mutandis.

9.2 If a third party asserts towards the customer that a service of the provider violates his rights, the customer shall be obliged to notify the provider without delay. The provider shall be entitled, but not obliged, to defend the asserted claims at its own expense to the extent legally permissible.

9.3 If the rights of third parties are violated by a service of the provider, the provider shall, at its own discretion and at its own expense:

  • procure the right to use the service for the customer or
  • design the service in a manner that it no longer violates any rights or
  • take back the service and reimburse the consideration paid for it by the customer (less reasonable compensation for use) if the provider cannot achieve any other remedy at a reasonable expense or effort. The customer’s interests shall be given due consideration.

9.4 Claims of the customer for defects of title shall become statute-barred in accordance with clause 5.3. Clause 13 shall apply additionally to claims for damages and reimbursement of expenses.

10. Consideration

10.1 The consideration for the services to be performed for granting use, i.e. in particular providing the APPLICATION, making available STORAGE SPACE including DATA BACKUPS, shall be stipulated in the SaaS contract. Depending on its nature, it may consist of a fixed monthly usage fee and/or variable fees on a time expenditure basis.

10.2 Fixed monthly usage fees shall accrue for each calendar month or part thereof from the date of operational provision. They shall be payable in advance by the third working day of the respective current calendar month. If the service is only used for part of a month, the fee shall be charged accordingly on a basis of 1/30 per day from the respective start of the contract.

10.3 Variable time expenditure-based fees shall be billed monthly in arrears. This, as well as any separate consideration, shall be due by the third working day of the following month.

10.4 The provider shall have the right to charge interest at a rate of 5 per cent when the payment becomes due. In the event of default, the provider shall have the right to charge interest at a rate of 8 percentage points above the base interest rate. This shall apply without prejudice to the provider’s right to claim greater damages. If the customer is more than 30 days in default of a payment, the provider shall be entitled to block access to the APPLICATION. Blocking of the application by the provider shall not be deemed a notice of termination of the provider.

10.5 The provider reserves the right to increase the consideration for the first time after the expiry of 12 months and no more than once a year, observing a notice period of 3 months to the end of the month, and to adjust it to internal cost increases caused by an increase in material or personnel costs or by third parties. As soon as the annual consideration increases by more than 5 per cent, the customer shall be entitled to an extraordinary termination of the contract as of the effective date of the increase, observing a notice period of six weeks after receipt of the demand for an increase. In the event of a reduction of the relevant costs, the customer may also demand a corresponding reduction of the consideration for the first time after the expiry of 12 months.

10.6 The customer may only offset against claims that are undisputed or res judicata; the same shall apply to exercising a right of retention. In the event of defects, the customer may only retain a portion of the payments to an extent corresponding to the scale of the defect and may only do so if the defect is unequivocally ascertained. Clause 5.1.4 sentence 1 shall apply mutatis mutandis. The customer may not exercise a right of retention against a counter-right that is not based on a right arising from this contract.

10.7 The provider may demand consideration in excess of that specified in clauses 10.1-10.5 for work performed insofar as:

  • a reported disruption is related to use of the APPLICATION in a non-approved environment or with modifications of the APPLICATION by the customer or third parties.
  • additional work/expenses are incurred due to a failure of the customer to fulfil his or her obligations duly and properly (see in particular clause 11).

Insofar as the provider is entitled to demand consideration in excess of that specified in clauses 10.1-10.5 for work performed, such consideration shall, unless otherwise agreed in writing between the parties, be charged at the provider’s list prices valid at the time of performance
for hourly, daily and expense rates and billing sections.

11. Duties and obligations of the customer

The customer shall meet all duties and obligations necessary for the execution of the contract. In particular, the customer shall:

1. keep secret the usage and access authorisations assigned to the customer or the users as well as identification and authentication safeguards agreed in clauses 3.1 to 3.1 in conjunction with the SaaS contract, shall protect them against access by third parties and shall not pass them on to unauthorised users. This data shall be protected by appropriate and customary measures. The customer shall notify the provider without delay if it is suspected that the access data and/or passwords may have become known to unauthorised persons;

2. create the access requirements agreed in clause 3.5 in conjunction with the SaaS contract;

3. comply with the restrictions/obligations regarding the rights of use pursuant to clause 8, in particular:

  • a. name all users intended by the customer for the use of the APPLICATION according to clause 8 and relevant changes;
  • b. not retrieve or cause to be retrieved any information or data without authorisation, nor interfere or cause to be interfered with programs operated by the provider, nor intrude into data networks of the provider without authorisation, nor promote such intrusion;
  • c. not misuse the exchange of electronic messages possible within the framework of the contractual relationship and/or using the APPLICATION for the unsolicited sending of messages and information to third parties for advertising purposes;
  • d. indemnify the provider against claims of third parties based on unlawful use of the APPLICATION by the customer or resulting from data protection, copyright or other legal disputes caused by the customer that are connected with the use of the APPLICATION;
  • e. oblige the authorised users to comply with the provisions of this contract applicable to them;

4. ensure that the customer (e.g. when transmitting texts/data of third parties to the provider’s SERVER) observes all rights of third parties to material used by the customer;

5. obtain the required consent of the respective data subject pursuant to clause 14.2, insofar as the customer collects, processes or uses personal data when using the APPLICATION and this is not automatically permitted by law;

6. check data and information for viruses before sending it to the provider and use state-of-the-art virus protection programs;

7. notify the provider without delay of any disruptions to contractual services, in particular of any defects in the services pursuant to clauses 3 and 4. For this purpose, the customer shall report any disruptions in writing in a comprehensible form, stating all information required for detecting and analysing the disruption. In particular, the customer must specify what work steps led to the occurrence of the disruption, how it manifested itself and what impacts it had. For this purpose, the customer shall use the provider’s relevant forms and procedure, in particular the provider’s form that is available in the support area of the web portal.
If the customer fails to report the disruption in good time for reasons for which the customer is responsible, this shall constitute contributory negligence or contributory fault. Insofar as the provider was unable to remedy the disruption due to the customer’s omission or delay in reporting it, the customer shall not be entitled to a reduction of the fixed fee specified under clause 10.2 of the contract in whole or in part, nor to compensation for the damage caused by the defect, nor to an extraordinary termination without notice due to the defect. The customer shall demonstrate that the customer is not responsible for the failure to report the disruption to the provider; in addition, the customer shall support the provider in eliminating disruptions as needed.

8. document changes to the operating environment and notify the provider without delay of any changes in this respect in writing. The customer shall also inform the provider without delay of any disruptions resulting from its area of responsibility that could impair the use of the APPLICATION as well as the expected duration of such disruptions.

9. regularly back up any data transmitted by the customer to the provider for the purpose of generating APPLICATION DATA with the help of the APPLICATION according to the significance of the data, and create own backup copies to enable the reconstruction of the data and information in case of loss;

10. regularly back up the APPLICATION DATA stored on the SERVER by download, if and to the extent that the customer is technically enabled to do so by mutual agreement; this shall apply without prejudice to the provider’s obligation to perform DATA BACKUPS pursuant to clause 2.4 in conjunction with the SaaS contract.

12. Data protection

Insofar as the provider should act as a processor for the customer pursuant to Art. 28 GDPR, the parties shall conclude a separate processing agreement that complies with the requirements of Art. 28 GDPR and that shall take precedence over these GTCs in the event of any conflicts.

13. Liability and limits of liability

13.1 Liability for intent and gross negligence shall be unlimited.

13.2 In the event of a breach of essential contractual obligations due to ordinary negligence, the amount of liability shall be limited to damages that are foreseeable and typical under the contract; for each individual case of damage, the liability per case of damage shall be limited to twelve times the monthly consideration, but to no less than an amount of 10,000 euros. Essential contractual obligations shall be obligations the fulfilment of which makes due and proper implementation of the contract possible in the first place and which the injured party can normally expect to be complied with.  The limitation period for claims under this paragraph shall be one year.

13.3 Paragraph 13.2 shall not apply to claims arising from injury to limb, health or life, in the case of deceit, in the event of the assumption of a guarantee, in the case of liability for initial incapacity or impossibility for which we are responsible as well as for claims under the Product Liability Act.

13.4 In all other respects, liability – on whatever legal grounds – shall be ruled out.

13.5 In the case of a loss of data the provider shall only be liable for the work/expenditure required for the recovery of data in the case of due and proper backups by the customer. In the event of slight negligence on the part of the provider, this liability shall only apply if the customer has performed a due and proper data backup immediately prior to the measure leading to the data loss.

14. Defects

14.1 The customer shall be entitled to assert the statutory rights in the event of defects of the services; it shall be at the provider’s discretion whether to remedy the defect by rectification or replacement.

14.2 Any strict liability – liability without fault – for damages (section 536a para. (1) of the German Civil Code (BGB)) due to defects that already existed when the contract was entered into shall be ruled out, except in the case of a characteristic warranted by the provider (guarantee, section 276 para. (1) of the German Civil Code (BGB)).

14.3 A limitation period of one year shall be agreed for claims for defects. This time limit shall not apply to claims for damages due to the violation of claims for defects; in this case the provisions on liability shall apply.

14.4 If the customer reports the existence of a defect and if our resulting activity should reveal that there is no defect in our service, the customer shall remunerate our work time expended for this purpose in accordance with the agreed hourly rates or, in the absence of an agreement, with reasonable hourly rates. This paragraph shall not apply if the non-existence of the defect was not recognisable for the customer applying reasonable skill and care.

15 Effective term, termination

15.1 The contractual relationship shall commence with the provider’s making the corresponding APPLICATION available. The APPLICATION shall be made available from the point in time chosen by the customer.

15.2 The contractual relationship shall be automatically extended in accordance with the respective APPLICATION by the respective term of the corresponding APPLICATION chosen by the customer, but for no longer than a further 12 months in each case. Each APPLICATION may be terminated by either party in writing by giving two weeks’ notice to the end of the term of the corresponding APPLICATION. Otherwise, any ordinary termination shall be ruled out. The contractual relationship shall end at the latest at the time when the term of the last application was also duly terminated by a corresponding notice of termination.

15.3 An extraordinary termination due to or in connection with a breach of duty shall only be possible after a prior written warning setting a reasonable deadline of no less than 14 working days. If the party entitled to termination has knowledge of the circumstances justifying the extraordinary termination for more than 14 working days, the party may no longer base the termination on these circumstances.

15.4 Notwithstanding the provision in clause 15.3, the provider may terminate the contract without notice if the customer is in default of payment of the prices or of a not insignificant part of the prices for two consecutive months or if the customer is in default of payment of the consideration in an amount equal to the fee for two months within a period extending over more than two months. In this case, the provider may additionally demand liquidated damages, payable immediately in one sum, in an amount of one quarter of the remaining basic monthly fee until the end of the regular term of the contract. The customer shall have the right to furnish evidence of a lesser damage.

15.5 A termination in accordance with section 543 para. (2) sentence 1 no. 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) for failure to permit use in conformity with the contract shall only be admissible if the provider has been given a reasonable opportunity to remedy the defect and this has failed.

16. Obligations on and after termination of the contract

16.1 At the time of expiry of the term of the respective APPLICATION, but at the latest on termination of the contractual relationship, the provider shall be obliged, at the customer’s request, to make the APPLICATION DATA stored by the customer and, where applicable, any other data stored on the mass storage device provided under clause 3.3 available to the customer or to a third party designated by the customer on a conventional data carrier or by means of remote data transmission in a common data format offered by the APPLICATION. The customer shall be obliged to compensate the provider for these activities on a time expenditure basis in accordance with the provider’s price lists for hourly, daily and expense rates and billing sections that were effective at the time of performance.

16.2 Upon request, the provider shall be obliged to cooperate with a third party as instructed by the customer within the first month after the legal termination of this contract for the purpose of winding up this contractual relationship. This cooperation shall be limited to:

  • transmitting the APPLICATION DATA stored by the customer,
  • Instructing the third party’s staff on the customer’s circumstances.

Separate consideration shall be paid for this cooperation on a time expenditure basis. The consideration shall be paid at the provider’s general list prices in effect at the time of termination of the contract. In addition, the customer shall reimburse the provider for all necessary and proven expenses incurred.

17. Miscellaneous

17.1 Any amendments and additions to all contracts concluded between the parties shall only be agreed in writing. Verbal agreements shall only be effective if they are confirmed in writing by the provider within 5 days; fax or e-mail shall suffice to meet the written form requirement.

17.2 The provider and the customer shall be obliged to keep confidential any business and trade secrets as well as other information designated as confidential that becomes known in connection with their contractual relationship or the resulting contractual relations. Such information may only be passed on to persons who are not involved in the conclusion, implementation or processing of the contractual relationship with the contractual partner’s written consent. Unless otherwise agreed, this obligation shall end after the expiry of five years from the date on which the respective information became known, but not before the termination of a contractual relationship existing between the provider and the customer.

17.3 The contract shall be governed solely by the law of the Federal Republic of Germany. Private international law shall not apply insofar as it can be waived.

18. Place of performance and jurisdiction

18.1 The place of performance for all obligations arising from the contractual relationships of the parties shall be the provider’s registered place of business.

18.2 The sole place of jurisdiction for all disputes relating to this contract shall be at the provider’s registered place of business. The latter shall also be entitled to assert claims against the customer at one of its legal places of jurisdiction.

version 2022-07-05-v017

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