§ 1 Applicability

(1) These Terms and Conditions are part of the contract and are exclusively valid. Terms and conditions which conflict with or deviate from those of the provider are not recognised by the provider unless the provider has explicitly agreed to their applicability.

(2) These Terms and Conditions only apply to business customers within the meaning of § 14 BGB.

(3) By registering with the provider, the Terms and Conditions are brought to the user's attention and the user shall confirm the applicability of the Terms and Conditions. Thus, they apply comprehensively to the use of the contractual standard software.

§ 2 Subject of the Contract

(1) These terms of contract govern the user's temporary use of the contractual standard software in the version which is current at the time of the conclusion of the contract.

(2) The software is provided by the provider as SaaS or as a cloud solution. For the duration of the contract, the user may use the software, which is stored on the servers or the provider or a third party authorised by the provider and which can be executed if there is an internet connection.

(3) The license for the software may only be acquired by business customers within the meaning of § 14 BGB.

§ 3 Conclusion of the Contract, Term

(1) The contract is concluded by the user's registration by clicking on the “sign up and pay fees” or a similarly marked button after filling in the relevant order form. In that process, easily visible links will lead the user to

• these Terms and Conditions and
• the Privacy Policy

for the user's information. Subsequently, the user will receive an e-mail from the provider, accepting the user's offer to conclude a contract and including the Terms and Conditions in text form.

(2) As part of the contract, the user will also enter into a data-processing contract with the provider online.

(3) The contract has no fixed term and can be terminated by either party by giving notice at least 14 days before the end of the month.

(4) The user is not entitled to adequate, effective and accessible technological means to correct entry errors in the order, the granting of the statutory information for electronic business transactions within the meaning of § 312i para. 1 no. 2 BGB, nor an immediate confirmation of the receipt of the order. If such means or information are/is provided, this happens ex gratia.

§ 4 Payment

(1) The monthly fee depends on the payment plan, which the user has selected.

(2) This and all other prices of the provider are indicated in Euro and are net prices, to which VAT will be added, if applicable.

(3) Payment of the recurring fees is made by the agreed payment method.

(4) As soon as the user is in default with the payment, the user has to pay default interest in accordance with § 288 BGB as well as the general compensation governed therein.

(5) If the user is in default with the payment, the provider may refuse the services by temporarily blocking the user's access to the software. In that case, the user still has to pay the agreed fees despite access being blocked. If the statutory requirements of § 543 BGB are met, the provider may also immediately terminate the contract for default of payment.

(6) The provider may refuse services for any claims from the business relationship with the user.

§ 5 Availability of the Software, Force Majeure

(1) The provider has to permanently provide the software to the user at the router exit of the data centre, where the server with the software is located (“transfer point“), for the user to use. The provider's services include the software in its current version, the computing capacity required for its use and the necessary storage capacity on a server accessible through the internet plus dial-up logistics for the user. The provider does not owe the data link between the user's IT systems and the transfer point as defined above.

(2) The provider may temporarily limit or block altogether the use of the page, in particular for maintenance and improvement as well as for other reasons required by the provider's or the software's operation. If possible, the provider will consider the reasonable interests of the user (for example in determining maintenance times). In the case of immediate malfunctions, the provider may also address malfunctions during regular business hours.

(3) The user shall report lack of functionability or malfunctions to the provider as soon and as detailed as possible.

(4) If the provider is unable to provide the services due to force majeure, the provider's obligation to provide the services will rest for as long as the impediment to the performance lasts.

(5) If the impediment to the performance lasts for more than one week, the user may terminate the contract immediately if the performance of the contract won't be of further interest to the user due to the hindrance.

§ 6 Provision of Services, Support

(1) The user may receive help for using the software from the provider (support), by contacting the provider by phone, in writing or electronically.

(2) The user is only entitled to support services currently offered by the provider.

(3) The provider may make the provision of support dependant on the customer's authentication.

(4) If the provider offers electronic support, the user grants the provider access to all the user's system components for support purposes at all times. If a remote access connection will be required, the provider will provide this and the associated efforts free of charge. The user has no right to claim own expenses connected with the remote access connection and the provision of support, like connection charges, costs for administrators, compensation for working hours or similar, from the provider.

§ 7 Updates

(1) The provider will keep developing the software and its services further. Improvements and updates of the standard software in line with the current features and in compliance with changed legal and technological requirements will be provided to the user automatically and voluntarily as part of the contract.

(2) The user is not entitled to certain improvements (unless the software is or becomes defective) or a certain timeline of measures.

(3) In particular, the user is not entitled to further development of additional features; the provider may make their use dependant on amending the contract, in particular amending the agreed fees.

(4) The provider secures the user's data on the server for which the provider is responsible and also regularly on an external back-up server.

(5) The user may extract these data for back-up purposes at any time, if technologically feasible, and has to do so at the end of each working day. If this is not possible, the provider provides a weekly back-up of the data to the customer.

§ 8 Illegal Use

(1) The user may not use the cloud software excessively or in a spamming manner. The user must take all precautions to rule out illegal, spamming or otherwise excessive use.

(2) The user is not allowed to use or infect the software or the server, on which the software is run, with malware (viruses, worms or Trojan horses etc.) or to permit such type of use negligently.

(3) Unless explicitly agreed, the user is not allowed to pass on, sublease, sublicense or otherwise resell the software.

§ 9 User's Obligations, Cooperation

(1) The user has to provide full and true information that is required for the contract. The obligation to provide true information relates in particular to the company name, first and last name, full address as well as contact and bank information. If the user provides false information, the provider may immediately terminate the contract for cause.

(2) The user must keep the information up to date and inform the provider of any changes without delay.

(3) The user will receive the access data to the software from the provider. The access data serves the purpose of ruling out that unauthorised people use the hosted software. The access data are to be protected against unauthorised access by third parties and have to be changed from time to time for security purposes. The user may only digitally store the user ID and the passwords in encrypted form.

(4) If the access data are entered incorrectly repeatedly, access may be blocked for the protection of the user. If the blocking is the user's fault, the user is liable for the expenses incurred by granting renewed access and for the provider's expenses, based on the contractually agreed or locally typical and reasonable fees.

(5) The user has to inform the provider without delay as soon as the user gains knowledge of third parties having access to the user's access data or if they have otherwise gained access to the user profile. If the user fails to notify the provider without delay, the user must compensate the provider for resulting losses.

§ 10 Warranty

(1) The provider extends a warranty for the software based on the applicable statutory provisions, unless stated otherwise herein. The provider only extends a warranty within the framework of the characteristics of the software offered and described by the provider. The provider does not extend any warranty for the software complying with the user's interests or operational peculiarities, unless the provider is at fault for a wrong consultation or otherwise.

(2) The provider's potential strict liability pursuant to § 536a BGB is waived. The provider is only liable for initial defects if the provider knew or should have known of the defect and failed to inform the user accordingly.

(3) The user has no claims for defects if the software is not working properly because the user is not using it under the agreed conditions of use or within a system that has not been agreed upon or otherwise in violation of § 8 of this contract or if the user has negatively altered the software himself or through third parties.

(4) The user has to report potential defects in detail and in a comprehensible way. The user must in particular detail the steps that led to the defect, the way the defect materialises as well as the defect's effects.

(5) If the user reports a defect despite being responsible for the malfunction, the provider may charge the fees for the support provided to the user, based on the typical and reasonable fees for such support services.

(6) The remedy will be carried out during the provider's business hours by improving the software free of charge. The provider may do this within a reasonable timeframe.

(7) The user has to support the provider in the course of the remedy, insofar as reasonable.

§ 11 Liability

(1) The provider is liable without limitation for premeditated or grossly negligent acts as well as culpable injury to life, limb or health or violations of the Product Liability Act or in the case of a promised feature, whatever the legal basis.

(2) The provider is not liable for slightly negligent breaches of non-essential contractual obligations. In the case of a breach of non-essential contractual obligations, the provider's liability is limited to the typical losses foreseeable at the time of the conclusion of the contract. Essential contractual obligations are such obligations that protect legal positions of the user which are essential to the contract, which the contract has to guarantee to the user according to the content and purpose of the contract, as well as obligations, the performance of which is necessary for the proper performance of the contract to be possible and of which the user could usually rely on them being fulfilled.

(3) Any further liability of the provider, whatever the legal basis, is excluded. This limitation of liability also extends to the employees of the provider as well as to its vicarious agents and subcontractors. These rules do not lead to a reversal of the burden of proof.

(4) User content published on the provider's website I not checked by the provider for being legal, correct and complete, nor does it represent the provider's opinion. The provider is not responsible for offers and content of others.

§ 12 Provider's Copyright, Licenses

(1) For the term of the contract, the provider grants the user the non-exclusive, non-transferable and non-sublicensable right to use the contractual software.

(2) Unless permitted by law, the user is not allowed to

• translate, amend, mix or otherwise change the software; this extends to the documentation, too,
• to decompile, imitate or reverse engineer the software,
• to copy the software or the documentation, unless it is necessary for the contractual lease use,
• to remove to change or to render illegible the provider's trademark, copyright or other intellectual property right signs affixed to the software

(3) The user's data collected, processed and generated by the software will be stored on the provider's servers. The user remains the sole owner of the data. Insofar, the provider is only a processor of personal data.

§ 13 Data Protection

(1) For the contract, contractual data are collected in accordance with Art. 6 para. 1 (b) GDPR (for example name, address and e-mail address, possibly also services used and all other electronically or for the purpose of storage transmitted data, which are required for the performance of the contract), insofar as they are required for the conclusion, negotiation or amendment of this contract.

(2) The contractual data will only be passed on to third parties insofar as it is necessary to perform the contract (in accordance with Art. 6 para. 1 (b) GDPR), for the overwhelming interest in an effective performance (in accordance with Art. 6 para. 1 (f) GDPR) or if consent has been given (in accordance with Art. 6 para. 1 (a) GDPR) or if there is another statutory permission. The data will not be passed on to a country outside of the EU, unless the EU Commission has determined a similar level of data protection as in the EU, consent has been provided or standard contractual provisions have been agreed with the third-party provider.

(3) Concerned individuals may at any time and free of charge request information about the personal data stored about them. They may at any time request that incorrect data be corrected (also by way of adding information) as well as the limitation of the processing of their data, or even the deletion of their data. This applies in particular if the reason for the data processing no longer exists, if a required consent has been withdrawn and there is no other legal basis, or if the data processing is illegal. The personal data will then be corrected, blocked or deleted without delay and according to statutory requirements. It is always possible to withdraw the consent for the processing of personal data which had been given previously. This may be done without any formal requirements, for example by e-mail. The withdrawal has no effect on the legality of the data processing carried out up to that point. There is a right to request the transfer of the contractual data in machine-readable form. In the case of a suspected violation of rights by the data processing, a complaint may be filed with the competent supervisory authority.

(4) The data will generally only remain stored as long as the purpose of the respective data processing calls for it. Storage beyond that time is possible if it is necessary to pursue legal claims or for legitimate interests or in cases of a statutory obligation to store the data for longer (for example tax-law requirements to maintain records, statute of limitations).

(5) The user allows the provider to copy the data provided by the user if this is necessary to provide the services under this contract. The provider may also store the data on a back-up system or in a separate back-up data centre. To deal with malfunctions, the provider may also change the structure of the data or the data format.

§ 14 Mediation

(1) In the case of disputes arising out of the business relation between provider and user, the parties have to strive for an amicable solution. If no agreement can be reached, they vow to attempt to reconcile their differences in a mediation proceeding before addressing a court of law. This does not exclude the possibility to file for a temporary injunction.

(2) If a party requests mediation from the other party, both parties have to agree on a mediator within eight days. If such an agreement is not reached within due time, upon the request of one of the parties, an attorney – preferably one who offers online mediation - has to be appointed as mediator with binding effect for the parties by the chairperson of the Bar Association of the provider's jurisdiction or one of his/her deputies. This jurisdiction is also the place for the mediation, unless the board of the association will propose an online mediation. The language of the mediation is German, unless all participants agree on a different language.

(3) Addressing a court (or an alternative arbitration procedure, if agreed) is only permitted once the mediation has failed because (a) the parties have unanimously declared the mediation to be over, (b) one party refuses further negotiations after the first mediation session, (c) the mediator has declared the mediation to have failed or (d) no agreement has been reached within 3 months after the beginning of the first mediation session, unless the parties extend this deadline unanimously.

(4) The costs of an unsuccessful mediation are borne by both parties at equal parts in relation to the mediator. Notwithstanding this rule in relation to the mediator, the parties are free to demand reimbursement of these costs and lawyer's fees, if applicable, in a subsequent proceeding; this will be governed by the relevant decision. If the parties reach an agreement, they may also come to an agreement on costs.

§ 15 Jurisdiction, Applicable Law, Severability

(1) The place of performance is at the registered office of the provider.

(2) For all current and future claims from the business relationship with a user, who is a business person within the meaning of § 14 BGB, the courts at the provider's registered business address have sole jurisdiction. The same jurisdiction applies if the user has no domestic place of general jurisdiction, if the user moves or changes the business registration out of the country after the conclusion of the contract of if the user's residence or habitual residence is unknown at the time of filing a lawsuit. But the provider may also sue the user at the user's place of business or at any other competent jurisdiction at any time.

(3) All contractual relations between the parties are governed by German law exclusively.

Last updated December 14, 2020