Software as a Service Contract
updated on 06.09.2017
Charlottenburger Allee 5
hereinafter called "provider"
“customer” and “provider” hereinafter together called "contracting parties"
The provider develops and sells an efficient administrative and marketing software for estate agents. For example, the provider supplies via the Internet software which can be used by means of an access software ("Software as a Service"). The customer wants to purchase a licence for rental use of the software via the Internet. The following contract therefore regulates the conditions relating to the purchase of the licence and the extent of permitted use.
§ 1 Area of Application
(1) All the provider's goods and services supplied to the customer within the framework of Software as a Service (hereinafter called "SaaS") shall be based solely on this contract. Unless expressly agreed in writing, any different conditions shall not apply.
(2) Irrespective of the provisions in paragraph 1, the provider shall supply, if necessary, services to which special conditions and specific regulations also apply. If these services are offered, these additional conditions are attached in Annexes and shall therefore become an integral part of the contract.
(3) The customer shall give an assurance that he is an entrepreneur. Entrepreneurs within the meaning of this contract shall be natural or legal persons, or legally capable partnerships.
(4) who are exercising their commercial or independent professional activity at the time of conclusion of the contract with the provider. (5) If these Utilisation Conditions do not contain any special regulations, our General Terms and Conditions (AGB) shall apply.
§ 2 Subject of Contract – SaaS Services -
(1) The subject of the contract shall be as follows:
- Rental of software by the provider for use by the customer via the Internet. The software forming the subject of the contract and the related prices are defined in the offer.
- Provision of computing power and storage space by the provider for storage of data according to the offer.
(hereinafter together called "subjects of service")
(2) Creation and maintenance of the data link between the transfer point defined in § 3 (3) and the customer's IT systems shall not form a subject of service. The customer shall be solely responsible for the operability of his Internet access, including the transmission paths, as well as of his own computers (required hardware and software).
(3) The software source code shall also not form a subject of service.
§ 3 Transfer of Software
(1) The latest version of the software shall be supplied to the customer via the Internet in return for payment for the duration of this contract. For this purpose, the provider shall make the software available on a server ready for download. The software shall be downloaded from the Internet by means of a currently valid browser or another suitable application (e.g. app).
(2) The functional description in the offer shall apply conclusively to the characteristics of the software.
(3) The transfer point for the software shall be the time when the data leave the computer centre.
(4) During the term of the contract the provider shall adapt the subjects of service, if necessary, to market-related technical changes. However, the customer shall have no right to specific improvements.
§ 4 Provision of Storage Space
(1) In order to be able to store his data, the customer shall be provided with storage space on a server. The customer may store data up to a volume based on the technical specification which is defined in the offer. If the storage space is no longer sufficient to store the data, the provider shall inform the customer accordingly. Subject to existing availability, the customer may increase the amount of storage space in return for payment. The conditions may be obtained from the provider. If the storage space is used contrary to the terms of the contract or to a disproportionate amount (in excess of 100 GB per user), the provider shall reserve the right to cancel a storage capacity contingent or a flat-rate storage capacity charge. The customer shall receive a warning prior to cancellation and shall then have four weeks time to reduce the amount of storage space.
(2) The provider shall ensure that the stored data are available on the Internet. The provider shall not be liable for continuous availability.
(3) The provider shall be obliged to take normal precautions to avoid data loss and prevent third parties from accessing the customer's data without authorisation. The provider shall regularly produce a security copy (backup) of the customer's data for this purpose. The security precautions are described in the Technical and Organisational Measures (TOMs) which shall form an integral part of the Contract Data Processing Agreement.
Any loss of data shall be notified immediately to the provider. In the event of data loss, the provider shall reload the latest backup. If the customer is responsible for the loss of data, he shall reimburse the provider for the incurred costs.
§ 5 Support
The provider shall also supply support services with the software. The extent of the support services shall be based on the description of the selected service package in the offer. Furthermore, the customer can demand technical support via phone for 30 minutes a month. Phone times that are not demanded cannot be transferred to the following month. Additional support packages may be agreed according to an individual agreement with Sales.
§ 6 Access
(1) After the contract has started, the provider shall send the customer the software administration access data. (2) The customer may create users within the software. Only natural persons with real names may be registered as users. The customer shall check the identity of the users and document their user data in a list of his registered users ("named users") together with the respective access code.
(3) The software may only be used by the number of employees named in the offer. Repeat orders shall be possible via the contact person in Sales or the related software shopping centre. A fixed licence shall be assigned to an employee who shall use it permanently. The licence may not be divided among several employees. Licences may only be transferred to another employee in justified cases (resignation of the employee, longer holiday, longer illness). The previous employee shall lose his/her licence in this case. The change of user shall be documented with the new user data in the list of registered users.
§ 7 Rights to Use the Software
(1) The customer shall be granted a non-exclusive and non-transferable right to access the software via the Internet and use it in accordance with the provisions of the contract. This right shall be limited to the period of validity of the contract.
(2) The software may only be utilised by a certain number of defined users ("named users") at the customer. The number of registered users shall be defined in the offer.
(3) The customer shall not be entitled to utilise the software outside the rights granted in the above-mentioned paragraphs. The customer shall also not be entitled to arrange for the software to be used by third parties. A third party shall not be regarded as anyone who is an agent of the customer and makes use of the services without payment, e.g. employees of the customer, freelance employees within the framework of the contractual relationship, etc. Use shall only be permitted within the customer's own company. In particular, the customer shall not be permitted to reproduce or exploit the software or parts thereof, irrespective of whether this involves the sale or rental of the software or other types of usage.
(4) The customer shall grant the provider the necessary utilisation rights to the data for the performance of the contract. These rights shall be transferred by the customer in connection with the use of the software on the provided storage space. This shall include the right to make the customer's data accessible for queries over the Internet, to reproduce and transmit the data for this purpose, and to reproduce the data for the purpose of data backup. The customer shall always remain the sole owner of these data and may export them at any time as a CSV file from the software (download) without any right of retention on the part of the provider. Especially after the termination of the contract, the customer may request deletion of all data or commission a backup in order to comply with deadlines in his own business activities. The conditions may be obtained from the provider. The customer shall also not be entitled to receive software which is suitable for further use of the data.
§ 8 Interrupted Accessibility
(1) Adjustments, amendments and additions to the subjects of service, as well as measures used to detect and rectify malfunctions shall only then lead to a temporary interruption in accessibility if this essential for technical reasons. Planned and announced maintenance work shall not be regarded as downtimes. The provider shall endeavour to announce maintenance work at least 7 days before it is due to start.
(2) The provider shall attempt to ensure high availability of the subjects of service. However, the customer shall have no specific right to minimum availability.
§ 9 Obligations of the Customer
(1) The customer shall give an undertaking not to store on the supplied storage space any data which infringes laws, official regulations or the rights of third parties. If the customer discovers that this obligation has been infringed, he shall inform the provider immediately and stop the infringement. In response to an initial request, the customer shall release the provider from all third-party claims in this respect.
(2) The customer shall give an undertaking not to store on the supplied storage space any data which are immoral, nor to use the data in any way that is unreasonable for the provider. In particular, use shall be regarded as unreasonable if the message or form of presentation contains extreme political, ideological or religious opinions, xenophobic, discriminatory (e.g. sexist or harmful in another way) comments, as well as comments that are in bad taste or are directed against the interests of the provider or its contractual partners. In response to an initial request, the customer shall release the provider from all third-party claims in this respect.
(3) The customer shall be obliged to check his data for viruses or other harmful components prior to storage on the supplied storage space and to use in this case virus protection programs corresponding to the latest state of the art. The provider shall not be obliged to check the data.
(4) The customer shall not attempt without permission to either retrieve information or data personally or by unauthorised third parties, or to intervene or arrange for intervention in programs operated by the provider, or penetrate data networks of the provider without authorisation;
(5) The customer shall not improperly use the possible exchange of electronic messages for unsolicited transmission of messages or information to third parties for advertising purposes (spamming).
(6) The Software contains a spam filter for incoming mails. The customer is nevertheless obliged to check his own mailboxes in the onOffice software for spam mails and is asked sort any incorrectly sorted spam mails himself. Please note that e-mails in the "Spam" folder are automatically deleted after seven days and e-mails in the "Trash" folder after 30 days.
(7) The customer shall be obliged to keep his access data secret and shall not make them accessible to third parties.
(8) The data kept by the customer on the supplied storage space may be protected by copyright or under data protection law. The customer shall ensure that all industrial property rights and copyrights are observed. In particular, the customer shall grant the provider the right to make the content stored on the server available for queries over the Internet and to reproduce the content for the purpose of data backup.
(9) The customer shall obligate his users to comply with the valid provisions and obligations relating to the use of the subjects of service according to this contract.
(10) Irrespective of the provider's obligation to back up data, the customer shall be personally responsible for entering and updating his data which are required to use the subjects of service.
(11) During the term of the contract the customer shall ensure the availability of the technical conditions which are required to use the subjects of service. Otherwise, this may lead to faulty operation for which the provider shall not be responsible. This shall apply in particular, but not exclusively to the following:
- Sufficient bandwidth and quality of services, both in the local network of the customer and on the line of the customer's network operator
- Routers with VPN capability
The provider may inform the customer separately about additional technical conditions prior to the conclusion of the contract.
(12) In the event of faults, malfunctions or impairments of the subjects of service, the customer shall be obliged to inform the provider immediately and as precisely as possible. If the customer fails to notify the provider, § 536 c of the German Civil Code (BGB) shall apply analogously. If access to the customer by means of remote maintenance is needed to rectify the fault, the customer shall grant this access to the provider.
(13) The customer shall be obliged, after submitting a fault report (within the service description from the offer), to reimburse the provider for the costs incurred in carrying out a test if it is revealed that the provider's technical equipment did not contain a fault and this could have been determined by the customer if he had made a reasonable effort to find the fault.
(14) When using the portal interfaces (e.g. to ImmobilienScout24, Immonet, Immowelt, etc.), the customer shall personally check whether transmission was successful. onOffice shall not provide any warranty regarding transmission or the exclusion of transmission errors.
(15) If the customer's data stored on the supplied storage space contains personal data, the customer shall conclude the Contract Data Processing Agreement with the provider.
§ 10 Usage in Breach of Contract
(1) In every case in which the customer culpably allows the software to be used by third parties or users not named by the customer, the customer shall pay each time an immediately due contractual penalty. The amount of the contractual penalty shall be based on reasonable discretion and shall be evaluated according to the individual case.
(2) In the event of unauthorised transfer of use, the customer shall immediately supply the provider, on request, with all information for enforcing the claims against the user, especially the user's name and address.
(3) If the customer or the user named by the customer illegally contravenes the material obligations shown in this contract, especially the obligations shown in § 9.1 to § 9.7, the provider shall be entitled to block the customer's access to the software and his data. Access shall only be restored when the contravention of the particular material obligation has been permanently rectified or the danger of recurrence has been eliminated by submitting an appropriate Cease and Desist Declaration with a penalty clause to the provider. In this case the customer shall be obliged to pay the monthly fees.
(4) The provider shall be entitled to delete the data in question in the event of contravention of § 9.1 to § 9.3.
(5) If a user illegally contravenes the obligations shown in § 9.1. to § 9.7, the customer shall immediately supply the provider, on request, with all information for enforcing the claims against the user, especially the user's name and address.
§ 11 Fees
(1) The fees shall be calculated on a monthly basis and shall become due for payment in advance on the first working day of every month. The fees shall be paid commencing on the month in which the software is provided ready for use. Default shall occur 14 days after the due date without the need for a warning. The customer shall authorise the provider to collect the rent, the set-up fee and all other prices using the SEPA direct debit procedure, and shall ensure that he has the necessary funds in his bank account. For every unredeemed or returned SEPA direct debit, the customer shall be responsible for reimbursing the provider in a proportion related to the former's responsibility for the event that led to the costs being incurred by the provider. For this purpose, the customer shall immediately inform the provider about the necessary credit card details at the start of the contract. The customer shall also inform the provider about any subsequent changes to his credit card details.
(2) The monthly fee shall be shown in the offer. The calculation method for the fee shall basically take account of the number of users, the term of the contract, efficiency and other aspects which are shown in the offer.
(3) In addition to the monthly fee, a one-off set-up fee may be charged. This set-up fee shall be paid at the start of the contract. The amount of the one-off set-up fee and the exact scope of services shall be shown in the offer.
(4) Other prices shall be paid at the latest when the services are supplied.
(5) Invoicing shall be carried out solely in electronic form by means of an e-mail sent to the e-mail address stored at the provider by the customer. The invoice shall also only be sent in paper form at the express request of the customer; in this case an administrative fee amounting to € 2.00 per invoice shall be charged.
(6) The customer shall only be entitled to use the subjects of service, which go beyond the scope agreed in the offer, with the prior written permission of the provider. In the event of additional use without permission, the provider shall be entitled to demand additional fees based on the rates agreed in the offer.
(7) All prices shall be invoiced in Euro plus the statutory VAT valid at the time when the services are supplied.
(8) The provider shall be entitled to reasonably increase the normal or list prices for the contractual services at most once a quarter in order to compensate for increases in personnel, operating and comparative costs. The provider shall inform the customer about these price increases in writing or by e-mail three months before the price increase; the price increases shall not apply to the periods for which the customer has already made payments. If the price increase amounts to more than 20% of the previous invoice amount, the customer shall be entitled to terminate the entire contract with a period of notice of one month at the end of a calendar month; if the customer makes use of this right of termination, the prices that were not increased shall be charged up to the time termination of the contract takes effect. The prices may not be increased within three months after conclusion of the contract.
§ 12 Default
(1) If the customer fails to pay the fees on a period extending for more than two months, the provider shall be entitled to demand flat-rate compensation - payable immediately - amounting to the remaining monthly prices up to the end of the regular term of the contract as well as the provider shall be entitled to cancel the contract ordinarily. If the customer is in arrears with a significant amount due, the provider shall be entitled to block the customer's access to the software and his data. Before the provider blocks the customer's access to the software and his data due to late payment, the provider shall inform the customer accordingly in the form of a system report and shall grant him a reasonable period of grace to pay the outstanding claims of the provider.
(2) The provider shall reserve the right to enforce other claims due to default in payment.
(3) If the provider fails to supply the ready-to-operate software on time, his liability shall be based on § 13. The customer shall only be entitled to withdraw from the contract if the provider does not comply with the reasonable period of grace granted by the customer. This period of grace shall be at least two weeks.
§ 13 Warranty and Liability
(1) In accordance with the provisions of rental law, the provider shall provide a warranty for the agreed quality of the subjects of service.
(2) If contractual use of the software is impaired by third-party industrial property rights through no fault of the provider, the provider shall be entitled to refuse to supply the services thus affected. The provider shall immediately inform the customer and shall enable the latter to access his data in a suitable way. The customer shall not be obliged to make payment in this case. Other rights or claims of the customer shall not be affected.
(3) Defects in the software, including online help and other documents, shall be rectified by the provider within a reasonable period of time after the defect has been notified accordingly by the customer. This provision shall also apply to other problems relating to the possibility to use the software. Defect rights under a rental contract shall apply to defect claims. The provider shall be entitled to make rectification of the defect dependent on the fact that the customer is not in arrears with payment of his rental fees.
(4) The customer's right to terminate the contract due to the failure to grant use according to § 543(2) Sentence 1 No. 1 of the German Civil Code (BGB) shall be excluded, unless the creation of contractual usage can be regarded as having failed.
(5) Information relating to the properties of the subjects of service, technical data and specifications in the offer or the service descriptions, as well as any other contract-related documents shall be used solely to describe the particular service. They shall not be regarded as a warranty (or an assured property) in accordance with the German Civil Code. The provider shall not make any warranty promises.
(6) In every case of contractual and non-contractual liability, the provider shall only pay compensation as follows:
- Unlimited in the event of intent and gross negligence;
- In the event of slight negligence, compensation amounting to foreseeable damage typical of the contract solely due to infringement of a material contractual obligation.
Any other liability shall be excluded.
(7) In accordance with § 536 a (1), 1 Alternative German Civil Code, the provider's liability without fault for defects which already existed when the contract was concluded shall be excluded.
(8) Liability for the loss of data shall be limited to the typical recovery costs which would have been incurred if the customer had regularly produced backup copies appropriate to the risk level, unless the provisions of § 13 (5) apply.
(9) The liability restrictions shall also apply to the personal liability of employees, representatives and organs of the provider.
(10) Minor errors shall be acceptable to the customer. In this case no claims may be enforced against the provider. A minor error shall be deemed to have occurred, in particular, if it is based on the use of unsuitable hardware or software by the customer or his Internet provider, if the error does not seriously impair the purpose of the contract during reproduction, if force majeure takes place, if the computer breaks down due to a system failure or a line outage, if network problems occur or if the utilised server breaks down for not longer than 24 hours within a period of 30 days. The liability restrictions according to the above-mentioned paragraphs shall not apply in the case of liability for physical injury and liability under the Product Liability Act.
(11) Claims asserted by the customer from this contract due to warranty and liability shall become statute-barred at the latest 12 months after the due date and possible notification of the claim. This provision shall not apply to intent and gross negligence, nor to physical injury, non-fulfilment of independent warranties and in the event of malice on the part of the provider. The period shall commence at the end of the month in which the reason for the claim arose and the sales partner became aware of the claim entitlement.
(12) The provider activates spam detection for outgoing mails, which ensures that the onOffice software is not misused for sending spam mails. In such cases, the customer will be notified accordingly. This serves to improve the reputation of the mail system for automatically generated mails from the onOffice server.
§ 14 Transfer of the Rights and Obligations from this Contract
The customer may only transfer the rights and obligations from this contract to third parties with the prior written consent of the provider. The provider shall be entitled to transfer the rights and obligations from this contract to a group company within the meaning of § 15 of the German Joint Stock Corporation Act (AktG).
§ 15 Maintenance of Confidentiality
The contracting parties shall be obliged to maintain confidentiality regarding business and company secrets which become known to them – including their agents – during initiation of the contract or fulfilment of the contract. These obligations shall not apply to information, know-how and experience which
- are proved to be public knowledge without infringing this obligation to maintain confidentiality,
- are proved to have been known to the contracting parties prior to receipt of the information, know-how and experience
- were received from a third party without infringing this obligation to maintain confidentiality or
- are proved to have been produced independently.
§ 16 Force Majeure
(1) The provider shall be released from the obligation to perform under the terms of this contract if and insofar as the failure to provide services is due to the occurrence of force majeure after the contract has been signed.
(2) Cases of force majeure shall include, for example, war, strikes, unrest, expropriations, substantial changes in law, storms, floods, other natural disasters and other circumstances for which the provider is not responsible. These other circumstances shall include, in particular, inrushes of water, power failures and interruption or non-culpable destruction of data-carrying lines of infrastructure.
(3) Each contracting party shall immediately inform the other contracting party in writing about the occurrence of a case of a force majeure.
§ 17 Start and Term of Contract, Termination
(1) The start of the contract and any minimum terms shall be shown in the offer. The contract shall be extended (after the end of the minimum term) by a period of 12 months and may be terminated by both contracting parties with a period of notice of three months (for the first time at the end of the minimum term).
(2) The contract may be terminated by both contracting parties at the earliest at the end of the minimum contract term. Written notice of termination of the contract shall be sent to the contracting party at least 3 months before the end of the minimum contract term. If the contract is not terminated by a contracting party, it shall automatically be extended each time for another 12 months. The regulation in Sentence 2 shall then apply analogously to termination of each following 12-month contract terms. The contracting parties' right of extraordinary termination of the contract for good cause shall not be affected. Good cause for extraordinary termination of the contract shall be deemed to exist, in particular, if
- the other contracting party repeatedly infringes essential contractual obligations; essential contractual obligations shall primarily include prompt payment of the fees.
- the other contracting party commits a criminal act in connection with this contract;
(3) The contract shall be terminated in writing.
(4) The contractual usage rights of the customer shall end on expiry of the contract, irrespective of the reason.
(5) The customer may request the provider to hand over the stored data in a common digital form up to one month after the end of the contract. Depending on the requirement, this shall necessitate a separate offer relating to data backup (on request, prices are shown in the current price list). At the end of this period of one month, all data as well as all mailboxes shall be finally deleted without any further prior announcement.
§ 18 Miscellaneous
(1) German law shall apply solely to this contract to the exclusion of international private law.
(2) Aachen shall be the place of performance. Aachen shall be the sole place of jurisdiction for disputes arising from this contract.
(3) All agreements containing an amendment, addition or concretisation of these contractual provisions, as well as special assurances and arrangements shall be recorded in writing. This provision shall also apply to the amendment of the written form requirement. If they are made by representatives or auxiliary persons of the provider, they shall only be binding if the provider has granted written consent in this respect.
(4) If one of the clauses of this contract is or becomes invalid, the validity of the other clauses shall not be affected. The invalid clause shall be replaced by a valid clause whose purpose comes as close as possible to the contracting parties' original intention relating to the invalid clause.