§ 1. Material scope and subject matter of the contract
The following terms and conditions (the "General Terms and Conditions of Contracts") 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 duty through the medium of the Internet.
The subject matters of the contract are:
• the provision of software programmes listed at www.saas.de for use through 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 provided by both parties will be governed by the contractual agreements. The scope of performance defined in the contract is deemed to be the agreed quality. Decisive for this are:
• the defined scope of services of the software listed in the contract, which is specified in the respective
• user documentation is specified,
• the suitability for the use assumed in the contract,
• the conditions set out 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 arrangements will apply in the order set out above.
Further conditions, in particular general terms and conditions of the contractual partner, do not apply, even if EGOTEC does not expressly contradict them. The GTC of EGOTEC AG apply exclusively.
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 is provided via the Internet. The transfer point for the SaaS services is the router output of the data 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.
The customer hereby acknowledges EGOTEC as the sole licensor of the software and the associated copyrights. EGOTEC's rights as sole licensor also apply to extensions of the software provided by EGOTEC to the customer, if this is not otherwise regulated in writing.
Customer hereby acknowledges EGOTEC's trademark, name and patent rights with respect to the Software and related documentation. The customer may not remove, alter or otherwise modify copyright information or other similar proprietary notices in the programs and related documentation.
3.2 Rights of the customer to the data
The data collected, processed and generated by the software are stored on the servers of the computer 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 data is released through electronic transmission over a data network or, by separate agreement, through the handover of 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.
3.4 Duration and termination of the contract
The minimum term for the provision of the SaaS service is 1 month. The contract period is automatically extended by a further 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 good cause, in particular in the event of failed direct debits or credit card collections.
§ 4. Maintenance conditions and service level
4.1 Further developments/change in performance
EGOTEC reserves the right to further developments and changes in performance (e.g., by using newer or different 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 a timely manner. 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 ensures 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. Through a restore procedure, EGOTEC can perform the restore of the customer data at the express request of the customer.
4.3 System availability
The availability of the data centre network at the router output 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 during fault clearance due to reasons for which EGOTEC is not responsible and failures due to major force.
4.4 Disruptions to system availability
Faults in 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 support hours, fault clearance begins within two hours. In the case of fault messages received outside support hours, the fault clearance begins 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) will 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 limitation period is one year.
Errors in the software and the associated documentation will be eliminated by EGOTEC free of charge within a reasonable period of time. The requirement for this claim for rectification of defects is that the defect is reproducible. In order to fulfil the warranty obligation, EGOTEC can, at its own discretion, either rectify the defect or deliver 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 provides an alternative solution to the faulty function that allows the customer to use it in accordance with the contract.
If a significant programme 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 it turns out in the course of the fault rectification that the problems are due to operating errors or improper use by the customer, EGOTEC can demand appropriate remuneration 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. Warranty claims against EGOTEC are only due to the direct customer and cannot be assigned.
§ 6. Limitation of liability
In any case, the contractual as well as tortious liability of EGOTEC is limited 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, except in the case of intent and gross negligence. 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 the case of major force, in the case of fault of third parties or of the customer himself. EGOTEC assumes no liability for damages that 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 does not apply to information that is publicly accessible or becomes publicly accessible without unauthorised action or omission on the part of the contracting parties or must be made accessible due to a court order or a law. In the case of support for client problems, it may be necessary to access client records. Access can take place over 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 must be processed within the scope of the subject matter of the contract, EGOTEC and the customer will comply with the statutory data protection provisions.
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 applies exclusively.
Should a provision of the contract be or become invalid, this will 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 applies if a contractual gap should become apparent.