§ 1. material scope and subject matter of the contract
The following terms and conditions (the "General Terms and Conditions of Contract") apply to the use and operational support of standard software programs (the "software"), which are produced by EGOTEC AG, hereinafter referred to as EGOTEC, and provided as a software-as-a-service service via the medium of the Internet.
The object of the contract is:
- the provision of software programmes listed under www.saas.de for use via the Internet and
- the storage of the customer's data on servers of the computer centre.
Individually developed software programmes are not the subject of this contract.
§ 2. type and scope of the services
The nature and scope of the services to be provided by both parties shall be governed by the contractual agreements. The scope of services defined in the contract shall be deemed to be the agreed quality. The following shall be decisive
- the defined scope of performance of the software specified in the contract, which is set out in the respective
- user documentation,
- the suitability for the use assumed in the contract,
- the conditions stipulated in the contract,
- the following conditions,
- generally applied technical guidelines and professional standards, in particular also the international standards and proposals of the Internet Engineering Task Force (IETF) as documented in the Request-for-Comments (RFC) and the W3C (World Wide Web Consortium).
In the event of discrepancies, the contractual agreements shall apply in the above order.
Further conditions, in particular general terms and conditions of the contractual partner, do not apply, even if EGOTEC does not expressly contradict them. The general terms and conditions of EGOTEC AG apply exclusively.
§ 3. terms of use
3.1 Rights of the customer to the software
EGOTEC grants the customer a non-exclusive, non-transferable and non-sublicensable right to use the software named in the contract and the associated user documentation within the framework for the duration of the contract. The software shall be provided via the Internet. The transfer point for the SaaS services is the router output of the computer centre used by EGOTEC to the Internet. The customer undertakes to use the software exclusively in accordance with the contract and neither to pass it on to third parties nor to make it accessible to third parties in any other way. The customer is not entitled to "reverse engineer", decompile, disassemble, duplicate or use any part of the software to create a separate application.
Customer hereby acknowledges EGOTEC as the sole licensor of the Software and the copyrights associated therewith. EGOTEC's rights as sole licensor also apply to extensions of the software provided by EGOTEC to the customer, unless otherwise provided in writing.
The customer hereby acknowledges EGOTEC's trademark, name and patent rights with respect to the software and related documentation. Customer shall not remove, alter or otherwise modify any copyright information or other similar proprietary notices in the Software and related documentation.
3.2 Customer's Rights to the Data
The data collected, processed and generated by the Software shall be stored on the servers of the Data Centre. The customer remains in any case the sole owner of the data and can therefore demand from EGOTEC at any time, in particular after termination of the contract, the surrender of individual or all data, without EGOTEC having a right of retention. The surrender of the data is effected by electronic transmission via a data network or, after separate agreement, by handing over data carriers. The customer has no right to also receive the software suitable for the use of the data. The responsibility for the permissibility of the collection, processing and use of the data as well as for the protection of the rights of the persons concerned (information, use, correction, blocking, deletion) lies with the customer.
3.3 Violation of the Terms of Use
In the event of infringements of the above-mentioned conditions of use, EGOTEC is entitled to terminate the contract in whole or in part without notice. In this case, EGOTEC additionally reserves the right to assert claims for damages against the customer resulting from the action contrary to the contract.
3.4 Contract duration and termination
The minimum term for the provision of the SaaS service is 1 month. The contract period is automatically extended by another month if no notice of termination is given. The amounts are collected from the last deposited direct debit or credit card data.
EGOTEC is entitled to terminate for an important reason, in particular in case of failed direct debits or credit card collections.
§ 4. maintenance conditions and service level
4.1 Further developments/modification of services
EGOTEC reserves the right to further developments and changes in performance (e.g. by using newer or other technologies, systems, procedures or standards) in the course of technical progress and optimisation of performance after conclusion of the contract. In the case of significant changes in performance, EGOTEC will notify the customer accordingly in good time. If the customer suffers significant disadvantages as a result of the changes in performance, he has the right to extraordinary termination of the contract on the date of the change. The termination must be made by the customer within two weeks after receipt of the notification of the change in performance.
When providing new versions of the software, EGOTEC grants the customer the rights listed in section 3 accordingly also for the respective new version.
4.2 System operation
EGOTEC shall ensure that the software provided is operated in an environment and configuration suitable for the customer's requirements and on hardware suitable for the customer's intended use. This includes the number and type of servers, regular backups, scalability, power supply, air-conditioning technology, firewalling, virus checking, broadband Internet connection.
EGOTEC carries out daily backups of the data stocks. By means of a restore procedure, EGOTEC can carry out the restore of the customer data at the express request of the customer.
4.3 System availability
The availability of the network of the data centre at the router exit on the Internet is 99% on an annual average. The client-side connection to the Internet is the responsibility of the customer. This is not part of the SaaS scope of services. The downtime is determined in full minutes and is calculated from the sum of the fault clearance times per year. Excluded from this are those periods which EGOTEC marks as so-called maintenance windows for optimisation and performance increase as well as loss of time in the fault elimination due to reasons for which EGOTEC is not responsible and failures due to force majeure.
4.4 Disturbances of the system availability
Disturbances of the system availability must be reported by the customer immediately after they become known. Before reporting the fault, the customer must check his area of responsibility. In the case of fault reports received within the support hours, the fault clearance shall begin within two hours. In the case of fault reports received outside support hours, fault clearance shall begin on the following working day. Delays in fault clearance for which the customer is responsible (e.g. due to the unavailability of a contact person on the customer's side) shall not be counted towards the fault clearance time.
§ 5 Warranty
According to the state of the art, it is not possible to exclude errors in software under all application conditions. However, EGOTEC guarantees that the software mentioned under www.saas.de is basically usable. The period of limitation is one year.
Errors in the software and the associated documentation will be eliminated by EGOTEC free of charge within an appropriate period. The prerequisite for this claim for the removal of errors is that the error is reproducible. In order to fulfil the warranty obligation, EGOTEC can, at its own discretion, either rectify the defect or supply a replacement. In particular, EGOTEC can provide the customer with a new version of the software to fulfil the warranty obligation. It is equivalent to a fault rectification if EGOTEC supplies an alternative solution to the faulty function which allows the customer to use the software in accordance with the contract.
The warranty claims are excluded if the software is not used in accordance with the contract. Furthermore, the warranty claims are excluded if the customer carries out changes or extensions to the software mentioned in the contract, unless the customer proves that the errors are not causally connected with the changes or extensions.
If a significant program error is not remedied by EGOTEC in accordance with the stated conditions, the customer can demand the reduction of the monthly SaaS fee. EGOTEC has the same right if the production of the error correction is not possible with reasonable effort. If in the course of the error correction it turns out that the problems are due to operating errors or improper use by the customer, EGOTEC can demand reasonable compensation for the expenditure incurred.
EGOTEC does not guarantee the fulfilment of the individual requirements of the customer by the software mentioned in the contract. This applies in particular to the non-achievement of the intended economic success. Only the direct customer is entitled to warranty claims against EGOTEC and these cannot be assigned.
§ 6. limitation of liability
In any case, the contractual as well as tortious liability of EGOTEC is limited, except in the case of intent and gross negligence, to EUR 500,000 for personal injury, EUR 100,000 for financial loss, damage to property and damage to activities and EUR 50,000 for loss of data. Liability for loss of profit is excluded.
EGOTEC does not assume any liability for disturbances on telecommunication connections, for disturbances on line paths within the Internet, in case of force majeure, in case of fault of third parties or of the customer himself. EGOTEC accepts no liability for damages which arise if the customer passes on passwords or user IDs to unauthorised persons.
§ 7. remuneration
A monthly fee agreed in the contract is charged for the SaaS services. The fees incurred are invoiced in advance over a period of time.
§ 8. terms of payment
Payments are made by direct debit or credit card clearing. If the payment deadline is exceeded, services may be restricted in the event of default.
The customer is not entitled to offset claims against EGOTEC unless they are legally established claims or claims recognised in writing by EGOTEC.
§ 9 Confidentiality, data protection
The contracting parties undertake to keep secret the knowledge gained within the scope of the subject matter of the contract - in particular technical or economic data as well as other knowledge - and to use it exclusively for the purposes of the subject matter of the contract.
This shall not apply to information which is publicly accessible or becomes publicly accessible without unauthorised action or omission on the part of the contracting parties or which must be made accessible on the basis of a court order or a law. In the event of support assistance with problems of the customer, it may be necessary to access data records of the customer. The access can take place via a web meeting with the client or via database analysis. This access is limited to the period of the respective support measure.
If personal data have to be processed within the scope of the subject matter of the contract, EGOTEC and the customer will comply with the legal data protection regulations.
In accordance with the Federal Data Protection Act (BDSG), EGOTEC points out to the customer that data of the customer will be stored.
§ 10. final provisions
The place of performance is Mosbach/Baden. The place of jurisdiction for both contracting parties is Mosbach/Baden. The law of the Federal Republic of Germany shall apply exclusively. The contract, its supplements and amendments as well as changes in form must be in writing.
Should any provision of the contract be or become invalid, this shall not affect the validity of the rest of the contract. The contracting parties undertake to replace the invalid provision with one that comes as close as possible to the economic intention. The same shall apply if a loophole in the contract should become apparent.