GTC

General Terms and Conditions (GTC) for the performance of services by ELIGO Psychologische Personalsoftware GmbH (ELIGO GmbH) on the basis of a service contract – business clients

1. General provisions

1.1 The provider shall perform all services solely on the basis of these General Terms and Conditions (GTC). Any GTC of the client shall not be effective, even if the provider has not expressly rejected them.

1.2 These GTC shall also apply if the provider performs the service for the client unconditionally despite knowing of opposing terms of the client or of terms of the client that deviate from the provider’s terms and conditions. In these cases the acceptance of services by the client shall be deemed a recognition of these GTC and a simultaneous – hereby accepted – waiver of the effectiveness of the client’s own GTC.

2. Offers and prices

2.1 Offers shall always be non-binding. A contract shall only be deemed concluded by a written confirmation of the order by the provider. If the provider performs the service without the client receiving a prior confirmation of the order, a contract shall be deemed concluded on commencement of performance of the service.

2.2 The service shall be performed on the basis of the prices and special terms and conditions of the respective service contract possibly with a specification of services. The prices specified therein shall be binding.

2.3 Unless otherwise agreed in individual cases, all prices are “net”, plus the respective statutory VAT of currently 19%.

3. Dates and deadlines

3.1 Dates and deadlines shall be deemed binding if they have been agreed as binding by the provider and the client for the individual case in writing. Unless otherwise agreed in writing, the performance deadline shall commence on conclusion of the contract or dispatch of the order confirmation.

Any agreement on a fixed performance deadline shall be subject to the condition that the provider’s own subcontractors duly perform the services required by the provider in good time and in accordance with contracts.

3.2 If the failure to meet a specific deadline is due to events for which the provider is not responsible (including strike or lock-out) the performance dates shall be postponed for the term of the disruption including a reasonable start-up phase.

3.3 If the provider defaults on performance in whole or in part, the client’s compensation for damages and expenses caused by the delay shall be limited to 0.5% of the price of the part of the service that cannot be used due to the delay for each full week of the delay. Overall, liability for default shall be limited to 5% of the total price of the respective order. This shall not apply if the delay is due to gross negligence or wilful intent of the provider.

3.4 In the event of a delayed performance the client shall only have the right to withdraw from the contract within the scope of statutory provisions, if the provider is responsible for the delay.

If the client claims compensation for damages or expenses instead of performance of the service, the client shall be entitled to demand 1% of the price of the part of the service that cannot be used due to the delay for each full week of the delay, but no more than 10% of the total price of the respective order. Clause 3.3 sentence 3 shall apply correspondingly.

4. Service/object of the contract

4.1 Unless otherwise agreed in writing for the individual case, the contents/condition and scope of services owed by the provider shall be governed by the respective service contract, possibly with a specification of services. Services under a work contract shall not be part of the contract. The client shall have responsibility for the project and the results. The provider shall perform the service according to the principles of professional practice.

4.2 The object of the contract may consist of a service to be performed once or in instalments or on an ongoing basis.

5. Execution of the service

5.1 The place of performance shall be at the provider’s principal place of business, unless otherwise agreed in writing for the individual case.

5.2 The staff members of the provider who are to perform the service shall be selected by the provider. The client shall not be entitled to select the staff members who are to perform the service. The provider shall take reasonable account of the client’s interests for the selection. The provider shall have the services performed by staff members who are qualified to perform the agreed services.

If a person selected by the provider to perform the service is replaced by another who requires an induction, this shall be borne by the provider.

5.3 The provider shall determine how the service is to be performed pursuant to the object of the contract.

5.4 The client shall not be authorised to issue instructions to the provider or to staff members of the provider who are assigned to perform the service with the exception of the provisions under clause 12.3.

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

6. Duties of the client

6.1 The client shall designate a qualified contact for the provider, who shall be able to make binding decisions on the client’s behalf during the term of performance of the contract (project manager). The project manager shall be available for the communication of necessary information and shall contribute to the necessary decisions for performance of the contract. The contact shall ensure that necessary decisions are made by the client without delay and are immediately documented thereafter by the parties together in writing.

6.2 The client shall ensure that the necessary documents, information, etc. for performance of the service are made available to the provider completely, correctly, in due time and free of charge, unless they are owed by the provider.

In addition, the client shall ensure that they are updated. The provider may trust that these documents, information, etc. are complete and accurate, unless he realises or must realise otherwise.

6.3 The client shall be obliged to support the provider as far as necessary and shall ensure that all necessary requirements for the due and proper performance of the order are met within his operating environment. In addition, the client shall provide sufficient work places and work materials at the provider’s request.

6.4 Unless otherwise agreed, the client shall store all documents, information, etc. submitted by the provider safely, so that they may be reconstructed in the case of loss or damage.

7. Utilisation rights

7.1 Unless otherwise agreed, the provider shall grant the client the non-exclusive and non-assignable right to permanently use the results of the service rendered by the provider and submitted to the client under the contract in his company and for his own internal purposes within the scope of the contractually stipulated purpose. These rights shall also apply to the agreed preliminary results, training materials and aids. Any other rights shall remain with the provider.

7.2 The provider may revoke the client’s right of use, if the latter significantly violates any restrictions on use or any other regulations ensuring protection against unauthorised use. Notice of revocation shall be given in writing; clause 12.1 sentence 3 shall apply correspondingly. Prior to such revocation the provider shall grant the client a grace period for remedying such violation. In the event of a recurrence and special circumstances that justify an immediate revocation taking due account of the interests of both parties, the provider may also revoke the right of use without notice. The client shall confirm the discontinuation of use to the provider in writing within seven days of receiving such notice of revocation.

8. Term

8.1 If the contract has been concluded for an indefinite term, it may be terminated in writing giving 3 months’ notice to the end of a calendar quarter. The earliest possible termination date shall be the end of the calendar quarter following the first calendar quarter after conclusion of the contract. An agreed minimum term shall not be affected by this termination right.

This shall not apply in the case of a deviating agreement.

8.2 A withdrawal from the contract shall be ruled out. However, the contract may be terminated without notice for good cause both by the provider and by the client.

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

9. Remuneration, payments, set-off and retention

9.1 Unless otherwise agreed in writing for the individual case, all payments shall be due without deductions within 7 calendar days from the invoice date.

9.2 A payment date granted to the client shall require an adequate available credit limit for each individual order. If the respective order exceeds the available credit limit, the provider shall be entitled to perform this and further orders only against prepayment or a security in the form of a performance guarantee from an approved credit institute or credit insurer in the European Union. The same shall apply if the

provider becomes aware of circumstances that give justified cause to doubt the client’s creditworthiness after confirming the order.

9.3 If the client fails to settle a debt in whole or in part by the agreed due date, the provider shall have the right to cancel agreed discounts and agreed payment dates for all outstanding debts at this time and demand immediate payment. In addition, the provider shall have the right to perform further services only against prepayment or a security in the form of a performance guarantee from an approved credit institute or credit insurer in the European Union.

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

9.5 The provider shall have the right to charge 5% interest as of the due date. In the case of default the provider shall have the right to demand interest in an amount of 8 percentage points over the basic interest rate. This shall not affect the provider’s right to claim greater damages.

9.6 The client shall only have set-off or retention rights against claims that are final or uncontested. The client may not exercise a right of retention against a counterclaim that is not based on a right under the contract underlying these General Terms and Conditions.

10. Disruptions of performance

10.1 If the service is not performed as stipulated in the contract and if the provider is responsible for this (disruption of performance), the provider shall be obliged to perform the service in whole or in part as stipulated in the contract within a reasonable term without additional costs for the client, unless this is only possible at an unreasonable cost or at an unreasonable expense or effort.

Unless otherwise agreed the provider shall only be obliged to do so, if the client reports the disruption of performance in writing without delay, but at the latest until two weeks after becoming aware that the service has not been performed pursuant to the contract.

For this purpose the client must monitor the performance of services by the provider appropriately.

10.2 if the provider is responsible for a performance that fails to meet the terms of the contract and is neither able to perform the service as stipulated in the contract due to his own fault within a grace period set by the client, the client shall be entitled to terminate the contract without notice. This shall not affect the right of extraordinary termination for good cause.

10.3 In the event of a termination according to clause 10.2 the provider shall be entitled to remuneration for the services performed until the effective date of the termination. This entitlement shall be obsolete for such services in relation to which the client explains in a qualified manner within 2 weeks after receiving the notice of termination that he has no use for or interest in the services.

10.4 If the provider is not responsible for a performance that fails to meet the terms of the contract, he shall offer a contractual performance to the client to the extent possible. If the client accepts this offer, the provider may claim costs/efforts and appropriately substantiated expenses for this purpose.

10.5 The limitation period for claims of the client due to disruptions of performance shall be one year from the start of the statutory limitation period. Statutory terms shall not be affected in the case 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 case of malicious intent and in cases of loss of life, physical injury or damages to health.

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

11. Liability

11.1 The provider shall be liable for damages

  • caused by wilful intent or gross negligence on his part or on the part of his legal representatives or vicarious agents,
  • according to the German Product Liability Act (Produkthaftungsgesetz) and
  • resulting from the loss of life, physical injury or damages to health for which the provider, his legal representatives or vicarious agents are responsible.

11.2 The provider shall be liable for ordinary negligence, as far as he or his legal representatives or vicarious agents have violated a major contractual obligation (so-called cardinal obligation) the fulfilment of which is a crucial prerequisite for due performance of the contract, the violation of which would jeopardise the purpose of the contract, and compliance with which is typically expected by the client. Otherwise, liability for ordinary negligence shall be ruled out.

As far as the provider is liable for ordinary negligence, liability for property damages and financial loss shall be limited to predictable damages that are typical for the contract. Any liability for other remote consequential damages shall be ruled out. Liability for an individual damage shall be limited to the contractual value.

11.3 For the limitation period clause 10.5 shall apply correspondingly.

11.4 In the case of a loss of data the provider shall only be liable for the expenses and efforts that are necessary to restore the data if the client duly performs back-ups. In the case of ordinary negligence on his part the provider shall only be liable if the client has performed a due back-up immediately before the measure leading to the loss of data.

11.5 Clauses 11.1 to 11.3 shall apply correspondingly to claims for the compensation of expenses and other liability claims of the client against the provider.

12. Miscellaneous

12.1 Any amendments and additions to all contracts concluded between the parties shall only be effective if agreed in writing. Verbal arrangements shall only be valid where confirmed by the provider within seven days in writing. A fax or e-mail shall suffice to meet the written form requirement.

12.2 The provider and client are obliged to keep confidential all business and company secrets as well as other information designated as confidential which come to their knowledge in the context of their contractual relationship or the resulting contractual relations. Such information may only be disclosed to persons who are not involved in the conclusion, implementation or execution of the contractual relationship with the written consent of the contract partner. Unless otherwise agreed, this obligation shall expire five years after the respective information has become known, but not before the expiry of a contractual relationship between the provider and the client.

The contract partners shall also impose these obligations on their staff members and possibly on employed third parties.

12.3 As far as the provider can access personal data stored on systems of the client, he shall only act in the function of a contract data processor (s. 11 (5) of the German Data Protection Act (Bundesdatenschutzgesetz – BDSG)) and shall process and use this data only for the performance of the contract. The provider shall observe the legal requirements for contract data processing and the client’s instructions (e.g. compliance with deletion and blocking obligations) for handling such data. The client shall bear possible detrimental consequences of such instructions for performance of the contract. The contract partners shall agree on the details for handling personal data in writing, where necessary according to section 11 (2) BDSG or other laws, before the provider has a possibility to access such data. The contract partners shall also impose these obligations on their staff members and possibly on employed third parties.

12.4 The provider and client are aware that electronic and unencrypted communication (e.g. by e-mail) entails security risks. For this kind of communication neither the provider nor the client shall therefore seek to enforce claims caused by a lack of encryption, unless encryption had been agreed in advance.

12.5 All contractual relationships between the parties shall be governed exclusively by German law.

13. Place of performance and legal venue

13.1 The place of performance of all obligations under the parties’ contractual relationships shall be the provider’s principal place of business.

13.2 The legal venue for all legal disputes arising from the parties’ contractual relationships as well as for disputes related to the establishment and validity of these contractual relationships shall be the provider’s principal place of business for merchants, legal entities under public law or special funds under public law. However, the provider shall have the right to take legal action against the client at the latter’s principal place of business.

General Terms and Conditions (GTC) for utilisation of the PERLS software application by ELIGO GmbH (Software as a Service (SaaS) terms & conditions) – business clients

1. General provisions

1.1 The provider shall perform all services solely on the basis of these General Terms and Conditions (GTC). Any GTC of the client shall not be effective, even if the provider has not expressly rejected them.

1.2 These GTC shall also apply if the provider performs the service for the client unconditionally despite knowing of opposing terms of the client or of terms of the client that deviate from the provider’s terms and conditions. In these cases the acceptance of services by the client shall be deemed a recognition of these GTC and a simultaneous – hereby accepted – waiver of the effectiveness of the client’s own GTC.

2. Offers and prices

2.1 Offers shall always be non-binding. A contract shall only be deemed concluded by a written confirmation of the order by the provider. If the provider performs the service without the client receiving a prior confirmation of the order, a contract shall be deemed concluded on commencement of performance of the service.

2.2 The service shall be performed on the basis of the prices and special terms and conditions of the respective SaaS contract possibly with a specification of services. The prices specified therein shall be binding.

2.3 Unless otherwise agreed in individual cases, all prices are “net”, plus the respective statutory VAT of currently 19%.

3. Object of the contract

3.1 The object of this contract shall be the provisioning of the software applications (hereinafter referred to – also collectively – as “APPLICATION“) defined in the SaaS contract possibly with a specification of services for using its functionalities, the technical enablement of use of the APPLICATION and the granting and procurement of rights of use for the APPLICATION by the provider towards the client against payment of the remuneration agreed in the SaaS contract possibly with a specification of services.

3.2 As of the date agreed in the SaaS contract possibly with a specification of services, the provider shall make available the latest version of the APPLICATION agreed in the SaaS contract possibly with a specification of services on a central data processing unit or several data processing units (hereinafter – also collectively – referred to as “SERVER“) for utilisation in accordance with the following provisions.

3.3 As of the date of operational provisioning agreed in the SaaS contract possibly with a specification of services, the provider shall make available STORAGE SPACE of an amount agreed in the SaaS contract possibly with a specification of services on the SERVER for data generated by the client’s use of the APPLICATION and/or for the data required for use of the APPLICATION (hereinafter referred to as “APPLICATION DATA”). Where required, further details on STORAGE SPACE and APPLICATION DATA shall be defined in the SaaS contract possibly with a specification of services.

3.4 Back-ups of the APPLICATION and APPLICATION DATA – DATA BACK-UPS – shall be created on the SERVER regularly, at least once per calendar day. The client shall be responsible for observing safekeeping periods prescribed by commercial or fiscal laws.

3.5 The transfer point for the APPLICATION and APPLICATION DATA shall be the router exit of the provider’s data centre. Further details are defined in the SaaS contract possibly with a specification of services.

3.6 The client shall be responsible for the fulfilment of system requirements by the client as defined in the SaaS contract possibly with a specification of services. The provider shall not be responsible for the condition or properties of the necessary hardware and software required by the client nor for the telecommunications connection between the client and the provider up to the transfer point.

4. Technical availability of the APPLICATION and access to the APPLICATION DATA, reaction and restoration times

4.1 The provider shall be responsible for ensuring the availability of the APPLICATION and APPLICATION DATA defined in the SaaS contract possibly with a specification of services at the transfer point. Under the term ‘availability’ the parties understand the technical usability of the APPLICATION and APPLICATION DATA at the transfer point for use by the client.

4.2 All details relating to availability shall be governed by the SaaS contract possibly with a specification of services. In particular, the SaaS contract possibly with a specification of services shall specify the following:

  • Utilisation period,
  • Times during which the application is available,
  • Degree of availability in % during the utilisation period

4.3 In addition, the SaaS contract possibly with a specification of services shall define reaction times that apply in the case of non-availability and/or in the case of disruptions regarding the APPLICATION and/or APPLICATION DATA.

5. Disruption reports/non-fulfilment of principal contractual obligations

5.1 If the provider fails to meet his obligations under clauses 3 and 4 for the operational provisioning of an APPLICATION and/or the APPLICATION DATA in whole or in part, the following provisions shall apply:

5.1.1 The provider shall accept due and proper disruption reports of the client during the agreed times, shall assign an identifier, classify such reports according to the disruption categories of the SaaS contract possibly with a specification of services, and shall perform measures to analyse and remedy disruptions on the basis of this classification. At the client’s request the provider shall confirm the receipt of disruption reports to the client indicating the assigned identifier.

5.1.2 The client shall, where necessary, immediately apply measures to avoid or eliminate disruptions and notify the provider of any remaining disruptions.

5.1.3 If the provider fails to meet the agreed obligations in whole or in part, the monthly fee under clause 10.2 shall be reduced proportionately for the term during which the APPLICATION and/or APPLICATION DATA are not available to the client to the agreed extent or the storage space is not available to the agreed extent. User fees according to clauses 10.3 and 10.4 shall only arise in the case of transactions that are actually performed despite the restriction or discontinuation of services for use of the APPLICATION. If the provider is responsible for non-fulfilment, the client may also claim damages according to clause 13.

5.1.4 No claims shall arise in the case of a minor deviation of the provider’s services from the contractually agreed quality. Neither shall claims arise if APPLICATIONS should fail in a non-agreed system and operating environment or due to non-agreed operating conditions or in the case of errors due to extraordinary external influences that are not provided for in the contract. This shall also apply in the case of subsequent modifications by the client or third parties, unless such modifications do not impede the analysis and elimination of the defect.

5.2 A strict liability of the provider for defects that already existed at the time of conclusion of the contract according to section 536a (1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB) shall be ruled out.

5.3 Claims for defects shall become time-barred one year from the start of the statutory limitation period. Statutory terms shall not be affected in the case 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 case of malicious concealment of a defect and in cases of loss of life, physical injury or damages to health as well as according to section 12 (1) of the German Product Liability Act (Produkthaftungsgesetz).

6. Other services of the provider

6.1 The provider shall make a digital, printable user documentation worded in German/English available to the client for each APPLICATION as a download on www.eligo.de.

If the provider offers software by a third party as an APPLICATION and no documentation in German/English is generally available from such third party, the provider shall have the right to only provide the documentation accessible to him.

The customer shall have the right to store and print the provided documentation maintaining any existing copyright notices, and to make an appropriate amount of copies for the purposes of this contract. Otherwise, the restrictions of use agreed in clause 8 for the APPLICATION shall apply correspondingly to the documentation.

6.2 Further services of the provider may be agreed at any time in writing. Such further services shall be rendered against remuneration for the documented workload based on the generally effective prices of the provider on the order date.

7. Excluded services

The following services 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 modifications of the application by the client or third parties;
  • Disruption management of technical problems of the Internet that are beyond the control of a party; this shall not apply if and as far as the provider also provides the telecommunications service;
  • Upgrades of the APPLICATION, i.e. further developed versions with major added functionalities;
  • Provision of other new software;
  • Elimination of disruptions or malfunctions caused by the fact that the hardware and software used by the client is unable to correctly
  • implement program sequences or correctly process data records, in particular to identify them fully and correctly, to calculate or run them due to lacking technical performance capacities;
  • Elimination of disruptions caused by an inexpert or incorrect use of the APPLICATION by the client. The same shall apply to disruptions caused by use of the APPLICATION by unskilled personnel of the client;
  • Additional agreed on-site assignments at the client’s location, advice and support for modified software, clarification of interfaces with third-party systems, installation and configuration support, including but not limited to add-on software or hardware.

8. Rights of use for and use of the APPLICATION, rights of the provider in the case of a breach of rights of use

8.1 Rights of use for the APPLICATION

8.1.1 The client shall receive simple non-sublicensable and non-transferable rights of use for the APPLICATION limited to the term of this contract or the respective APPLICATION in accordance with the provisions below.

8.1.2 The APPLICATION shall not be transferred to the client. The client may only use the APPLICATION for his own business activities through his own personnel.

8.1.3 The APPLICATION shall only be used simultaneously by the number of the client’s staff members specified by the client in the SaaS contract possibly with a specification of services. If it is used by more persons simultaneously than the number specified there, the client shall pay an additional flat utilisation fee defined in the SaaS contract possibly with a specification of services per person and access; further claims of the provider shall not be affected.

8.1.4 The client shall not be entitled to any rights other than those expressly granted to the client above. In particular, the client shall not be entitled to use the APPLICATION beyond the agreed scope of utilisation or permit third parties to use the APPLICATION or grant them access to it. In particular, the client shall not be permitted to replicate or sell or permit temporary use of the APPLICATION, including but not limited to renting it out or lending it to third parties.

8.2 Obligations of the client to ensure secure utilisation

8.2.1 The client shall take the necessary precautions to prevent unauthorised use of the APPLICATION.

8.2.2 The client shall be liable for preventing that the APPLICATION is used for purposes that are racist, discriminatory, pornographic, harmful to minors, politically extreme or in any other way unlawful or in violation of official regulations or requirements, or that corresponding data, including but not limited to APPLICATION DATA, are generated and/or stored on the SERVER.

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

8.3.1 The provider may revoke the client’s right of use, if the latter significantly violates any restrictions on use or any other regulations ensuring protection against unauthorised use in clauses 8.1 or 8.2. Prior to such revocation the provider shall grant the client a grace period for remedying such violation. In the event of a recurrence and special circumstances that justify an immediate revocation taking due account of the interests of both parties, the provider may also revoke the right of use without notice. The client shall confirm the discontinuation of use to the provider in writing within seven days of receiving such notice of revocation.

8.3.2 If the client violates the provisions in clauses 8.1 or 8.2 for reasons he is responsible for, the provider may, after having revoked his rights of use, block the client’s access to the APPLICATION or APPLICATION DATA, if the violation can demonstrably be remedied in this manner.

8.3.3 If the client unlawfully violates clause 8.2.2, the provider shall also have the right to delete the data or APPLICATION DATA concerned. In the case of an unlawful violation by a user the client shall immediately disclose all details to the provider on demand for the enforcement of claims against the user, in particular the user’s name and address.

8.4 Rights of the client to generated databases and database works

If and to the extent that a database, databases, a database work or database works are generated on the provider’s SERVER by activities of the client that are permitted under this contract, including but not limited to a compilation of APPLICATION DATA, during the term of this contract, the client shall be entitled to all rights to the above. The client shall remain the owner of the databases and database works even after the contract has expired.

9. Liability for third-party rights

9.1 The provider shall only be liable towards the client for an infringement of third-party rights caused by his services, if the service is used by the client, as contractually agreed, in particular within the operating environment specified in the contract. Moreover, any liability for the infringement of third-party rights shall be limited to third-party rights within the European Union and European Economic Area as well as

in the location of the contractually agreed utilisation of the service. Clause 5.1.4 sentence 1 shall apply correspondingly.

9.2 If a third party claims towards the client that a service of the provider infringes his rights, the client shall immediately notify the provider. The provider shall have the right, but not the obligation, to defend the enforced claims where admissible at his expense.

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

  • procure a right to use the service for the client, or
  • provide the service without infringing any rights, or
  • withdraw the service and refund the remuneration paid by the client (less an appropriate consideration for utilisation), if the provider is unable to achieve any other remedy at a reasonable expense/effort.

Reasonable consideration shall be given to the client’s interests.

9.4 Claims of the client due to defects in title shall become time-barred according to clause 5.3. Clause 13 shall apply additionally to compensation claims for damages and expenses.

10. Remuneration

10.1 The remuneration for the services to be rendered for the granting of use, i.e. including but not limited to making available the APPLICATION, providing STORAGE SPACE and creating DATA BACK-UPS shall be governed by the SaaS contract possibly with a specification of services. Depending on the nature of services, it may be composed of a fixed monthly fee and/or variable fees depending on the workload involved.

10.2 Fixed monthly fees shall incur for each started calendar month as of operational provisioning. 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 will be charged on the basis of 1/30 per day, as of the effective date of the contract.

10.3 Variable fees depending on workload shall be charged retrospectively on a monthly basis. These fees, as well as any special remuneration, shall be payable by the third working day of the following month.

10.4 The provider shall have the right to charge 5% interest as of the due date.

In the case of default the provider shall have the right to demand interest in an amount of 8 percentage points over the basic interest rate. This shall not affect the provider’s right to claim greater damages.

If the client defaults on payment for longer than 30 days, the provider shall be entitled to block access to the APPLICATION. Blocking of the application by the provider shall not be regarded as a notice of termination by the provider.

10.5 The provider reserves the right to increase the remuneration for the first time after a term of 12 months and no more than once a year giving 3 months’ notice to the end of the month for the purpose of adjustment to internal cost increases caused by rising material or personnel costs or by third parties. As soon as the annual remuneration should increase by more than 5%, the client shall have the right to an extraordinary termination of the contract observing a notice period of six weeks from receipt of the request for an increase, as per the effective date of the increase.

In the case of a reduction of the corresponding costs the client may also request a corresponding reduction of the remuneration for the first time after a term of 12 months.

10.6 The client shall only have set-off rights against claims that are final or uncontested; the same shall apply to the client’s retention rights. The client may only retain payments due to defects within a scope that is proportionate to the defect, and may only do so if there are no doubts as to the existence of the defect. Clause 5.1.4 sentence 1 shall apply correspondingly. The client may not exercise a right of retention against a counterclaim that is not based on a right under this contract.

10.7 The provider may demand a remuneration that exceeds the amount specified in clauses 10.1 to 10.5 for his efforts/expenses, if:

  • a reported disruption is connected with the use of the APPLICATION in a non-approved environment or with modifications to the APPLICATION performed by the client or third parties.
  • additional expenses/efforts are incurred by a failure of the client to duly fulfil his obligations (see clause 11 in particular).

If the provider is entitled to demand a remuneration that exceeds the amount specified in clauses 10.1 to 10.5 for his efforts/expenses, it shall be charged, unless otherwise agreed by the parties in writing, according to the effective list prices of the provider on the date of performance for hourly, daily and expense rates and accounting sections.

11. Duties and obligations of the client

The client shall meet all the duties and obligations required for performance of the contract. They shall include but not be limited to:

Keeping confidential the user and access authorisations assigned to him or the users as well as the identification and authentication keys

  1. agreed in clauses 3.1 to 3.1 in conjunction with the SaaS contract possibly with a specification of services, protecting them against access by third parties and not disclosing them to unauthorised users. Such data shall be protected by appropriate and usual measures. The client shall immediately notify the provider if it is suspected that unauthorised persons have gained knowledge of access data and/or passwords;
  2. Fulfilling the access requirements agreed under clause 3.5 in conjunction with the SaaS contract possibly with a specification of services;
  3. Observing the restrictions /obligations relating to the rights of use under clause 8, including but not limited to:
  4. Specifying all intended users of the APPLICATION under clause 8 and relevant changes;
  5. Retrieving no information or data without authorisation nor arranging for such retrieval; interfering with no programs operated by the provider nor arranging for such interference; penetrating no data networks of the provider without authorisation nor promoting such a penetration;
  6. Not misusing the possible exchange of electronic messages within the scope of the contractual relationship and/or the APPLICATION to send unsolicited mails and information to third parties for advertising purposes;
  7. Indemnifying the provider against third-party claims due to the unlawful use of the APPLICATION by the client or resulting from legal disputes relating to data protection, copyright or other laws caused by the client, in connection with use of the APPLICATION;
  8. Obliging authorised users to comply with the provisions of this contract applicable to them on their part;
  9. Ensuring that the client observes all third-party rights to material used by him (e.g. when transmitting texts/data of third parties to the provider’s SERVER);
  10. Obtaining the necessary consent of the affected party under clause 12.2, if he collects, processes or uses personal data when using the APPLICATION and no statutory permission is given;
  11. Scanning data and information for viruses before transmitting them to the provider and using corresponding state-of-the-art anti-virus programs;
  12. Reporting disruptions of the contractual services, including but not limited to defects of the services under clauses 3 and 4, to the provider without delay. For this purpose the client shall provide a written and comprehensible report of possible disruptions providing all the information necessary for detecting and analysing the disruption. In particular, he shall specify the steps leading to the occurrence of the disruption, as well as the manifestation and impacts of the disruption. For this purpose he shall use the corresponding forms and procedure of the provider, in particular the provider’s form available in the support area of the web portal.

If the client fails to make a timely report for reasons he is responsible for, this shall constitute contributory negligence or contributory culpability. If the provider is unable to remedy the disruption due to the failure to make a report or a delayed report, the client shall not be entitled to a fee reduction according to clause 10.2 of the contract in whole or in part, nor to claim compensation for damages caused by the defect or to terminate the contract due to the defect without notice. The client shall prove that he is not responsible for the failure to make a report;

In addition, the client shall support the provider where necessary with the elimination of disruptions.

  1. Documenting any changes to the operational environment and informing the provider of any changes immediately in writing.
    In addition, the client shall immediately notify the provider of any disruption resulting from his sphere of responsibility that may impair a use of the APPLICATION and of its expected duration.
  2. Backing up any data transmitted to the provider to generate APPLICATION DATA with the assistance of the APPLICATION on a regular basis and in accordance with the importance of such data and creating back-ups of his own so as to enable a reconstruction of such data in the case of a loss of data and information;
  3. Backing up the APPLICATION DATA stored on the SERVER by download, if and to the extent that he is given the technical possibility to do so by mutual agreement; this shall not affect the provider’s obligation to create DATA BACK-UPS according to clause 2.4 in conjunction with the SaaS contract possibly with a specification of services.

12. Data security, data protection

12.1 The parties shall observe the respectively applicable data protection regulations effective in Germany and impose an obligation on those employees assigned in connection with the contract and its implementation to keep data confidential according to section 5 of the

German Data Protection Act (Bundesdatenschutzgesetz – BDSG), unless they are already under a corresponding general obligation.

12.2 If the client collects, processes or uses personal data, he shall vouch that he is authorised to do so in accordance with the applicable data protection regulations, and shall, in the case of any breach, indemnify the provider from any claims of third parties. If the data to be processed are personal data, this shall constitute contract data processing and the provider shall observe the legal requirements for contract data processing and the client’s instructions (e.g. compliance with deletion and blocking obligations). Such instructions must be communicated in good time and in writing.

12.3 The provider shall take the technical and organisational security precautions and measures in accordance with the Annex of section 9 BDSG. In particular, the provider shall protect the services and systems as well as APPLICATION DATA and other data stored by the client or relating to the client on the SERVER that lie within the provider’s sphere of control against any unauthorised notice, storage, modification or other unauthorised access or attacks – whether by technical measures, viruses or other harmful programs or data or by physical access – by employees of the provider or third parties, regardless of how they are effected. For this purpose, the provider shall take the appropriate and usual measures according to generally recognised technological standards, including but not limited to virus protection measures and protection against similar harmful programs as well as other measures to secure his facilities, including anti-burglary measures.

12.4 The provider shall only collect and use client-related data to the extent necessary for the implementation of this contract. The client consents to the collection and use of such data in this extent.

12.5 The obligations under clauses 12.1 to 12.4 shall be maintained as long as APPLICATION DATA remain within the provider’s sphere of control, even beyond the expiry of the contract, for an indefinite period of time.

13. Liability and limitations of liability

13.1 The provider shall be liable for damages

  • caused by wilful intent or gross negligence on his part or on the part of his legal representatives or vicarious agents,
  • according to the German Product Liability Act (Produkthaftungsgesetz) and
  • resulting from the loss of life, physical injury or damages to health for which the provider, his legal representatives or vicarious agents are responsible.

13.2 The provider shall be liable for ordinary negligence, as far as he or his legal representatives or vicarious agents have violated a major contractual obligation (so-called cardinal obligation) the fulfilment of which is a crucial prerequisite for due performance of the contract, the violation of which would jeopardise the purpose of the contract, and compliance with which is typically expected (e.g. obligation to provide a non-defective service) by the client. Otherwise, liability for ordinary negligence shall be ruled out.

As far as the provider is liable for ordinary negligence, liability for property damages and financial loss shall be limited to predictable damages that are typical for the contract. Any liability for other remote consequential damages shall be ruled out.

Liability for an individual damage shall be limited to twelve times the monthly remuneration for each damage but at least to an amount of €10,000.

13.3 For the limitation period clause 5.3 shall apply correspondingly.

13.4 In the case of a loss of data the provider shall only be liable for the expenses and efforts that are necessary to restore the data if the client duly performs back-ups. In the case of ordinary negligence on his part the provider shall only be liable if the client has performed a due back-up immediately before the measure leading to the loss of data.

13.5 Clauses 13.1 to 13.3 shall apply correspondingly to claims for the compensation of expenses and other liability claims of the client against the provider.

14. Term, termination

14.1 The contractual relationship shall start with the provisioning of the corresponding APPLICATION by the provider. Provisioning of the APPLICATION shall be effected from the date chosen by the client.

14.2 The contractual relationship shall be extended automatically according to the respective APPLICATION by the term of the corresponding APPLICATION chosen by the client, but no longer than by a further 12 months at a time. Each APPLICATION may be terminated by either party giving ordinary written notice of two weeks to the end of the term of the corresponding APPLICATION. Otherwise, an ordinary termination shall be ruled out. The contractual relationship shall end at the latest by the date for which the term of the last application has been terminated by corresponding ordinary notice.

14.3 An extraordinary termination due to or associated with a breach of obligations shall only be possible after a prior written warning notice setting a reasonable deadline no shorter than 14 working days.

If the party entitled to terminate the contract has known of the circumstances justifying an extraordinary termination for more than 14 working days, he may no longer justify his termination by such circumstances.

14.4 Notwithstanding the provision in clause 13.3 the provider may terminate the contract without notice, if the client has defaulted on payment of the prices or of a considerable part of the prices for two consecutive months or has been in default of payment of an amount of the remuneration that equals the remuneration of two months for a period of more than two months. In this case the provider may additionally demand the immediate payment of a flat compensation for damages payable as a total and equalling one quarter of the remaining monthly basic fee until expiry of the regular contractual term. The client shall have the right to provide evidence of a smaller damage.

15. Obligations on and after termination of the contract

15.1 On the date of expiry of the term of the respective APPLICATION, but no later than on termination of the contractual relationship, the provider shall be obliged to provide to the client any APPLICATION DATA stored by the client and other data stored on the provided mass storage medium according to clause 3.3 to the client at the client’s request on a conventional data medium or by means of data transmission in a generally accepted data format.

In addition, the provider shall be obliged, at the client’s request, to provide all data stored by the client to a third party specified by the client on a conventional data medium or by means of data transmission.

The client shall remunerate the provider for these services by workload/expense according to the effective list prices of the provider on the date of performance for hourly, daily and expense rates and accounting sections.

15.2 On demand, the provider shall be obliged to cooperate with a third party according to the client’s instructions in order to wind up this contractual relationship within the first month after the legal termination of this contract. This cooperation shall be limited to:

  • Transmitting the APPLICATION DATA stored by the client,
  • Briefing staff members of the third party on circumstances of the client.

This cooperation shall be separately remunerated on a workload basis. The remuneration shall be paid according to the effective list prices of the provider on the date of termination of the contract. In addition, the client shall refund all incurred necessary and documented expenses to the provider.

16. Miscellaneous

16.1 Any amendments and additions to all contracts concluded between the parties shall only be effective if agreed in writing. Verbal arrangements shall only be valid where confirmed by the provider within five days in writing. A fax or e-mail shall suffice to meet the written form requirement.

16.2 The provider and client are obliged to keep confidential all business and company secrets as well as other information designated as confidential which come to their knowledge in the context of their contractual relationship or the resulting contractual relations. Such information may only be disclosed to persons who are not involved in the conclusion, implementation or execution of the contractual relationship with the written consent of the contract partner. Unless otherwise agreed, this obligation shall expire five years after the respective information has become known, but not before the expiry of a contractual relationship between the provider and the client.

16.3 The provider and client are aware that electronic and unencrypted communication (e.g. by e-mail) entails security risks. For this kind of communication neither the provider nor the client shall therefore seek to enforce claims caused by a lack of encryption, unless encryption had been agreed in advance.

16.4 All contractual relationships between the parties shall be governed exclusively by German law.

17. Place of performance and legal venue

17.1 The place of performance of all obligations under the parties’ contractual relationships shall be the provider’s principal place of business.

17.2 The legal venue for all legal disputes arising from the parties’ contractual relationship as well as for disputes related to the establishment and validity of these contractual relationships shall be the provider’s principal place of business for merchants, legal entities under public law or special funds under public law. However, the provider shallhave the right to take legal action against the client at the latter’s principal place of business.