Except as otherwise agreed, these Terms & Conditions for SaaS Subscriptions (“SaaS T&Cs”) apply when referenced in an agreement on the provision of subscription-based Software as a Service between C3rrolutions GmbH (“Provider”, “we”, “us”) and the customer (“Customer”; “you”).
1. Definitions
For the purposes of these SaaS T&Cs, the following terms, when capitalized, shall have the meanings set forth below. The meaning of the terms shall be the same in both singular and plural form.
1.1 “Affiliated Companies” refers to companies that are affiliated with a Party within the meaning of § 15 German Stock Act (“Aktiengesetz”; “AktG”).
1.2 “Agreement” means the Order Form submitted by Customer and accepted by Provider with all its specifications, referenced/incorporated terms and, if applicable, other documents.
1.3 “Authorized User” is a person at the Customer, its Affiliated Companies or its business partners to whom – if permitted for the respective Service – the Customer grants access authorization for Service within the scope of the agreed Usage Metrics.
1.4 “Business Partner” is a company that requires access to the Service in connection with the internal business transactions of the Customer or its Affiliated Companies, e.g. customers, distributors, service providers and/or suppliers of the Customer or its Affiliated Companies.
1.5 “Confidential Information” is all information of the parties which is subject to technical and organizational confidentiality measures and is marked as confidential or which is to be regarded as confidential according to the circumstances of disclosure to the other party or according to its content and which the parties disclose to each other in the initiation, execution or termination of the contractual relationship, including this contract. In particular, Customer Data, products, manufacturing processes, know-how, inventions, business relationships (including the present contractual relationship and its content and conditions), business strategies, business plans, financial planning, personnel matters are deemed to be confidential information of the Customer. In particular, information about research and development, product offers, pricing and availability of the Service as well as analyses and benchmarks drawn up in accordance with 9.3 shall be deemed Confidential Information of the Provider. Confidential information is not (or no longer) available if the information in question:
(i) were known or generally accessible to the public prior to disclosure by the other party or become so after disclosure without breach of a confidentiality obligation;
(ii) were demonstrably known to the receiving party prior to disclosure by the other party;
(iii) independently obtained by the receiving party without recourse to the Confidential Information of the disclosing party;
(iv) are handed over or made accessible to the receiving party by an authorized third party without breach of a confidentiality obligation; or
(v) have been explicitly released from confidentiality by the disclosing party.
1.6 “Customer” is the party specified in the Order Form that has purchased the Service for use by itself and, if permitted for the respective Service, Authorized Users.
1.7 “Customer Data” refers to all content, in particular documents, data and information, which is introduced into the Service by Authorized Users (e.g. data, documents, etc.) or derived from its use and stored in the Service (e.g. reports).
1.8 “Fault Class 1 (Critical Fault)” means a fault that causes a complete failure of the Service or significant parts thereof, so that use is completely or almost completely impossible and/or a fault that causes a significant security problem.
1.9 “Fault Class 2 (Major Fault)” refers to a fault that impairs the use of the Service to such an extent that reasonable work with the system is no longer possible or only possible with disproportionate effort.
1.10 “Fault Class 3 (Insignificant Fault)” refers to a fault that only insignificantly impairs the use of the Service.
1.11 “Initial Term” means the initially agreed Term in the Order Form.
1.12 “Order Form” means the document that specifies the requested Service and references and incorporates these SaaS T&Cs and, if applicable, other documents and that, if submitted by Customer and confirmed by the Provider, forms the Agreement between Provider and Customer on the provision of the Service.
1.13 “Parties” are the Provider and the Customer.
1.14 “Provider” is C3rrolutions GmbH that provides the Service.
1.15 “Renewal Term” means the automatically extended term – as a result of the Parties not terminating the contract (in due time) – beginning with the expiry of the previous Initial Term or Renewal Term.
1.16 “Server” means one or more data processing system(s) under the actual and/or legal control of the Provider on which the Service is operated.
1.17 “Service” means provision of Software operated on a Server in its current version for the web-based use of its functionalities via the Internet, including the provision of storage space for Customer Data on a Server (so-called Software as a Service (SaaS)).
1.18 “Software” means the application/program provided as a Service as specified in Order Form.
1.19 “Term” means the duration for which the Service is to be provided by the Provider and can be used by the Customer.
1.20 “Transfer Point” is the router exit of the data center in which the Provider or the service provider commissioned by the Provider hosts the Server.
1.21 “Usage Metrics” means the usage parameters for determining the agreed usage volume and calculating the respective remuneration for the Service as specified in the Order Form, if any.
2. Provision of the Service
2.1 Object of the provision. The Provider shall, in accordance with the following provisions, provide the Service agreed and further specified in terms of functionalities, Usage Metrics, Term and remuneration in the Order Form for use by the Customer and Authorized Users in accordance with section 4.
2.2 Customer access requirements. In order to use the Service, the Customer must have its own, sufficiently dimensioned access to the Internet and a supported standard web browser; the Order Form contains a list of the supported browsers and their versions as well as any necessary configurations. The Customer shall be solely responsible for the required quality of the hardware and software used on the Customer’s side and for an adequate telecommunications connection between the Customer and the Provider up to the Transfer Point. The Provider assumes no warranty for this.
2.3 Usage environment/admin and user accounts. The Provider creates a dedicated URL via which the customer can use the Service. If, according to the applicable Usage Metrics of the respective Service also Authorized Users are allowed to use the Service, tthe Provider shall set up an administrator account for the Customer for this purpose and provide the Customer with the relevant initial access data. The Customer can use the administrator account in accordance with section 4.2 create user accounts for Authorized Users and have the initial access data transmitted to them. The initial passwords must be replaced immediately after the first login by own passwords with sufficient security. For the further handling of access data the provisions under section 6.3.1. apply.
2.4 Availability. The availability of the Service in % per month at the Transfer Point guaranteed by the Provider is specified in Order Form. Availability is deemed to be the Customer’s ability to use all main functions of the software. Maintenance times as well as times of faults with adherence to the rectification time shall be considered times of availability of the Service. Times of Insignificant Faults shall not be taken into account when calculating availability. Faults are also not to be taken into account insofar as these were caused by
(i) factors outside the Provider’s sphere of responsibility (e.g. disruptions to the Customer’s Internet connection),
(ii) by the Customer or its Authorized User through non-contractual use or
(iii) in such a way that the fault could not have been prevented even if the Provider and its vicarious agents had exercised reasonable care (e.g. natural disasters, general Internet disruptions, etc.).
2.5 Troubleshooting. Receipt of fault reports pursuant section 6.5 and fault rectification is guaranteed Monday to Friday (excluding national holidays) between 9:00 a.m. and 6:00 p.m. German time (“Service Hours”). The Provider shall assess faults at its reasonable discretion after becoming aware of them, classify them into Fault Classes 1 (Critical Fault), 2 (Major Fault) or 3 (Insignificant Fault) and prioritize them accordingly. The Service-specific fault rectification times for these fault classes are specified in the Order Form.
2.6 Backups. The Service and the Customer Data stored on the Server are backed up regularly, at least every calendar day. The customer is responsible for compliance with retention periods under commercial and tax law.
2.7 Updates/changes. The Provider shall ensure that the Service always corresponds to the proven state of the art. It shall therefore update the Service from time to time. If and insofar as this involves a change to the functionalities of the Service, which in turn requires not insignificant changes to the Customer’s work processes supported by the Service or which are associated with not insignificant restrictions in the usability of previously generated Customer Data, the Provider shall notify the Customer of this in writing at least four weeks before such a change is planned to take effect. If the Customer does not object to the change in writing within a period of two weeks from receipt of the notification of change, the change shall become part of the Service. Whenever changes are announced, the Provider shall draw the customer’s attention to the aforementioned deadline and the legal consequences of its expiry if the opportunity to object is not exercised. If the customer objects to the change in due time, the Provider may terminate the contract extraordinarily at the time the planned change comes into effect.
3. Warranties by Provider/Defect rights
3.1 Warranties. The Provider warrants that the Service will comply with the specification set out in these SaaS T&Cs and the Order Form and that the Service does not infringe any third-party rights when used by the Customer in accordance with the contract.
3.2 Defects. If the Service provided by the Provider has a material or legal defect, the provisions of §§ 536 et seq. of the German Civil Code (“Bürgerliches Gesetzbuch”; “BGB”) apply accordingly, but subject to the following provisions:
3.2.1 Remedy of defects. The right of the Customer to remedy the defect himself is excluded. The Provider shall, at its discretion, remedy the defect free of charge or provide the Customer with a defect-free version of the Service. The defect may also be remedied by the provider showing the customer reasonable ways of avoiding the effects of the defect. In the event of defects of title, the Provider shall, at its own discretion
(i) procure the right to use the Service as agreed;
(ii) replace or modify the Service in such a way that the allegation of infringement is eliminated without unreasonably impairing the Customer’s contractual use; or
(iii) terminate the Order Form and refund the Customer any remuneration paid in advance for the term remaining after the termination date.
3.2.2 Reduction/Service credits. If the suitability of the Service for contractual use is more than just insignificantly reduced due to the defect, the Customer has the right to reduce the remuneration appropriately. The assertion of a reduction is excluded insofar as the Provider is unable to fulfill its obligations as a result of the Customer’s failure to report a defect in accordance with section 6.5 was unable to remedy the situation. If the agreed availability pursuant to section 2.4 is not met, the Customer may demand service credits as specified in the Order Form. The Customer must claim service credits from the Provider in writing within 30 working days of the end of the payment period in which the agreed availability was not met. If the Customer fails to do so, the entitlement to the service credits in question shall lapse. If the entitlement to the service credits has been confirmed in writing by the Provider, it shall be offset as a credit against a subsequent invoice amount for the relevant Service or – if no future invoice is due – paid as a refund.
3.2.3 Compensation for damages. No-fault liability for damages for defects already existing at the time of conclusion of the contract pursuant to § 536a (1) Alt. 1 BGB is excluded. If the defect arises due to a circumstance for which the Provider is responsible or if the Provider is in default with the rectification of a defect, the customer may demand compensation in accordance with section 12. The same applies if the Provider, in accordance with section 3.2.1 iii) terminates the contract due to a defect of title for which the Provider is responsible. The assertion of a claim for damages in accordance with sentences 2 and 3 of this section is excluded insofar as the Provider is in default as a result of the Customer’s failure to report a defect in accordance with section 6.5 could not remedy the situation.
3.2.4 Extraordinary termination. If there is a defect that reduces the suitability of the service more than just insignificantly and if the Provider has not rectified this defect even after the expiry of a reasonable period set by the Customer in writing to remedy the defect, the Customer has the right to terminate the Service extraordinarily.
4. Right of use for Customer
4.1 Right of use. The Provider grants the Customer the non-exclusive, worldwide right to use the Service, limited to the Term, solely for the purpose of conducting the business activities of the Customer and its Affiliated Companies in accordance with the provisions of these SaaS T&Cs.
4.2 Authorized Users. Within the scope of the Usage Metrics agreed in the Order Form, the Customer may be authorized to grant Authorized Users access to the Service. An access authorization may be transferred from one person to another if the original user is no longer authorized to use the Service.
4.3 Restrictions on use. The Customer is not entitled to
(i) use the Service in a way that violates applicable law or jeopardizes the security of the Service; in particular, it is prohibited to transmit information and data that is unlawful or infringes the rights of third parties;
(ii) sublicense, license, sell, lease, rent or otherwise make available to third parties the Service or access to the Service beyond the scope of section 4.2; and
(iii) modify, copy, translate, disassemble, decompile, reverse engineer, or otherwise modify the Service in whole or in part or create derivative works thereof, unless permitted by mandatory law.
5. Remuneration
5.1 Amount of remuneration. The customer shall pay the remuneration agreed in the Order for the Service. The Customer may order additional units during the term in accordance with the agreed usage metric as part of an extension agreement. Irrespective of the start of provision of the Service agreed in such an extension agreement, the term of each extension agreement shall correspond to the remaining current Term and the remuneration shall be calculated accordingly on a pro rata basis. If the contract is extended, all units shall be extended for the same period.
5.2 Adjustment of the remuneration. The recurring remuneration agreed in the Order Form shall apply for the Initial Term. The remuneration applicable to a Renewal Term shall correspond to the remuneration of the respective preceding Initial Term or Renewal Term, unless the Provider changes the remuneration at its discretion with a notice period of two months in case of a yearly Term respectively two weeks in case of a monthly Term with effect from the beginning of a Renewal Term by means of a written declaration of adjustment to the Customer in compliance with the following principles:
5.2.1 Scope of change. The Provider may not change the remuneration by more than the percentage of the change in the index specified in section 5.2.2 has changed. If this is the first remuneration adjustment, the index development between the index level published at the time of conclusion of the contract and the index level last published at the time of the declaration of adjustment shall be decisive for the scope of change. If a remuneration adjustment has already been made previously, the change framework is defined by the index development between the index level last published at the time of the previous adjustment declaration and the index level last published at the time of the new adjustment declaration.
5.2.2 Reference index. The index of gross monthly salaries of full- time employees in Germany in the information technology services sector (currently published quarterly by the German Federal Statistics Office in the GENESIS online database with the key 62361-0016: Index der durchschnittlichen Bruttomonatsverdienste (Quartale) and the code WZ08-62 Dienstleistungen der Informationstechnologie) is to be used as the basis for determining the change framework. If this index is no longer published, the index published by the Federal Statistical Office that most closely reflects the development of average gross monthly earnings in the aforementioned economic sector will be used to determine the scope of change.
5.2.3 Agreement/Extraordinary termination. The change in remuneration is deemed to be agreed by the Parties if the Service is renewed automatically for the Renewal Term unless Customer, by giving written notice at least one month – in case of a yearly Term – respectively one week – in case of a monthly Term – prior to the expiration date of the preceding contractual Term, terminates the Order Form with effect from the expiration of the relevant contractual Term (extraordinary termination right). The Provider will draw attention to this in the fee adjustment notice.
5.3 Value added tax. All agreed remuneration is subject to the applicable value added tax.
5.4 Invoicing/due date. The Service is invoiced to the customer on a monthly basis. Invoices are issued by e-mail at the beginning of the respective billing period and are due for payment within 14 days of the invoice date.
5.5 Default of payment.
5.5.1 Default interest. Upon maturity, the Provider may demand default interest in the amount of the applicable statutory default interest rate.
5.5.2 Blocking. If the Customer is in default of payment, the Provider is also entitled to temporarily block the Customer’s access to the Service in whole or in part after a reasonable grace period has expired without result until payment has been made.
5.5.3 Extraordinary termination. The Provider may terminate the contract without notice if the Customer is in arrears with payment of the remuneration for two consecutive months or, in a period extending over more than two months, with payment of an amount equal to the remuneration to be paid for two months.
5.6 Offsetting/right of retention. The Customer may only offset against undisputed or legally established claims and may only base a right of retention on undisputed or legally established claims.
5.7 Pro rata refund. If the Customer has justifiably terminated the contract for cause within a billing period, the Provider shall refund any remuneration already paid for the billing month in question on a pro rata basis.
6. Duties and obligations of the Customer
6.1 Suitability test. The Service is intended to be used by professionals (e.g. architects and engineers). The Customer is responsible for assessing the suitability of the Service, including the results/calculations created with, for its business processes as well as for compliance with the legal obligations relating to its Customer Data.
6.2 Provision of technical access requirements. The Customer shall be responsible for creating the technical access requirements and, in particular to use a compatible browser.
6.3 Compliance with the terms of use. The Customer must ensure the contractual use of the Service, in particular compliance with the restrictions on use in accordance with section 4.3 and to monitor it. This includes in particular the following obligations:
6.3.1 Confidential handling of access data. The access data for the Service may not be used more than once or by more than one person at the same time; the right to transfer access authorizations in accordance with section 4.2 remains unaffected by this. The access data must be kept secret, protected from access by third parties and not passed on to unauthorized users. The Customer shall inform the Provider immediately if there is any suspicion that the access data may have become known to unauthorized persons.
6.3.2 Notification of overuse/relicensing. The Customer must notify the Provider immediately in writing of any use that exceeds the Order Form, in particular the agreed Usage Metric. In this case, the Customer is obliged to conclude a corresponding extension agreement in accordance with section 5.1 which shows the additional units. The corresponding remuneration shall accrue from the day on which the overrun occurred.
6.3.3 Obligation of the Authorized Users. The Customer must oblige the Authorized Users, if any, to use the Service in accordance with the contract.
6.3.4 Compliance with legal provisions/observance of third-party rights. When using the Service, the Customer is obliged to comply with all applicable legal provisions, in particular data protection law (section 9.2) and the rights of third parties with regard to Customer Data (section 8.4) and in particular to ensure that the granting of rights and use of the Customer Data in accordance with section 8.3 is possible.
6.3.5 Measures against malware. The Customer is obliged to take appropriate measures to ensure that the hardware and software it uses to utilize the Service, including workstation computers, routers, data communication devices, etc. (hereinafter “IT Systems”) are free of any viruses, worms, Trojan horses and other malware. Suitable measures include in particular that the Customer uses the latest version of the operating system and browser software as well as a virus scanner on its IT Systems and that the IT Systems used are regularly checked for malware and this is removed if necessary. The Customer shall also ensure that all information and data uploaded to the Provider’s servers in the course of using the Service is free of any malware.
6.3.6 Penetration Tests. The Customer shall refrain from carrying out or authorizing penetration tests relating to the Service without the prior consent of the Provider.
6.4 Data backups. The Customer shall be responsible for maintaining its own copies of the documents, information and data transmitted by it and the Authorized Users, if any, to the Server in the course of using the Service. If the Service provides the technical possibility to do so, the Customer shall also be responsible for regularly backing up the documents, information and data derived from the use of the Service by downloading them; the Provider’s obligation to back up data in accordance with section 2.6 remains unaffected.
6.5 Notification of defects and faults. The Customer is obliged to notify the Provider immediately in writing of any defects in the Service or Service faults/disruptions. This shall also apply if a third party asserts claims arising from intellectual property rights that conflict with the exercise of the contractually granted authorization to use the Service; in this respect, the provisions in section 11 must also be observed. The notification must least contain
(i) the Name of the Customer and the user account through which the defect or fault was identified,
(ii) a sufficient description of the defect or fault to enable its reproduction; and
(iii) date and time of occurrence of the defect or fault.
6.6 Liability for Authorized Users. The Customer shall be liable for the acts and omissions of its Authorized Users, if any, in the same way as for its own acts and omissions.
7. Rights of the Provider in the event of non-contractual use by the Customer
7.1 Limitation/blocking of access. If the Provider is aware of any use of the Service by the Customer in breach of contract, it may temporarily limit or block access to the Service to prevent damage if and to the extent that there is sufficient probability that further use of the Service in breach of contract could adversely affect the Service, other customers of the Provider or the rights of third parties in such a way that immediate action is required to prevent damage. The Provider shall notify the Customer immediately of any such limitation or blocking. Where circumstances permit, the Customer shall be informed in advance in writing or by e-mail. The Provider shall restrict the limitation or blocking in terms of time and scope as is justifiable in the circumstances of the individual case.
7.2 Compensation for damages. The Customer must compensate the Provider for any damage resulting from use contrary to these SaaS T&Cs, unless the Customer is not responsible for such use.
7.3 Extraordinary termination. If the Customer continues to use the Service or repeatedly uses it in breach of contract despite a written warning from the Provider and is responsible for this, the Provider may terminate the Order Form without notice.
8. Customer Data
8.1 Responsibility. The Customer is responsible for the content of the Customer Data entered into the Service and its lawful use within the scope of the Service. Insofar as Customer Data contains personal data, section 9.2. applies.
8.2 Ownership of rights. Unless otherwise stipulated below, the Customer shall be entitled to the rights to and in relation to Customer Data in relation to the Provider. If and to the extent that a database, databases, a database work or database works are created on the Provider’s servers during the term of this Agreement, in particular by compiling Customer Data, as a result of the Customer’s activities permitted under these SaaS T&Cs, the Customer shall also be entitled to all rights thereto.
8.3 Granting of rights of use to Provider. The Customer grants the Provider and its Affiliated Companies and subcontractors a non-exclusive right to use the Customer Data, unlimited in time and place and limited to the Term, insofar as this is necessary to fulfill the Provider’s contractual obligations to the Customer and to verify compliance with the Customer’s rights of use. In addition, the Customer grants the Provider and its Affiliated Companies and subcontractors a non-exclusive right, unlimited in time and place, to use Customer Data to create anonymous and aggregated analyses for the following purposes
(i) improving the Service (in particular Service features and functions, workflows and user interfaces) and its support;
(ii) the training and development of algorithms for artificial intelligence and deep learning;
(iii) the identification of industry trends and developments as well as the creation of indices and anonymous benchmarking;
(iv) the verification of security and data integrity; and
(v) internal requirements planning.
8.4 Third party rights. The Customer assures that
(i) he is the owner of all necessary rights to the Customer Data;
(ii) he can lawfully process the Customer Data; and
(iii) the Customer Data is not encumbered with third-party rights that would prevent use in accordance with section 8.3.
9. IT security and data protection
9.1 Information security. The Provider shall take technical and organizational measures to ensure appropriate data security for Customer Data. In doing so, the state of the art, the implementation costs, the type, scope and purposes of the processed Customer Data as well as the probability of occurrence and the severity of both the information security risk for the Customer and the data protection risk for the data subjects under data protection law shall be taken into account.
9.2 Data protection. For personal data as defined in Art. 4 No. 1 GDPR contained in the Customer Data, the Customer is the controller within the meaning of Art. 4 No. 7 GDPR. In this respect, the Provider acts as a processor for Customer within the meaning of Art. 4 No. 8 GDPR. The rights and obligations of the parties in this commissioned processing relationship are specified in the Data Processing Terms [https://c3rro.com/data-processing-terms/]. Insofar as the provider also processes Customer Data in connection with the right of use granted in accordance with section 8.3, the Provider generally qualifies as controller within the meaning of Art. 4 No. 7 GDPR. However, the Provider shall ensure that these analyses do not extend to the Personal Data contained therein.
10. Confidentiality
10.1 Obligation of confidentiality. The Parties undertake to protect all Confidential Information of the other Party obtained before and during the performance of the contract for an unlimited period of time in the same way as their own comparable Confidential Information, but at least to treat it confidentially with reasonable care. The rights to Confidential Information shall remain with the disclosing party. The receiving party shall have no right of retention to Confidential Information of the disclosing party.
10.2 Use/purpose limitation. Confidential information of the other Party may only be used to exercise the rights and obligations arising from this contract and to fulfill legal obligations. The Provider may also state the name and business name of the Customer and the fact that the Customer uses the Service as a reference Customer when advertising the Service. The use of Confidential Information for other purposes is not permitted without the prior written consent of the other Party. In particular, the parties are prohibited from commercially exploiting or imitating Confidential Information of the other party in any way themselves (in particular by means of so-called “reverse engineering”) or having it exploited or imitated by third parties.
10.3 Disclosure. Confidential information of the other Party may not be disclosed to third parties, either directly or indirectly, e.g. as a description or summary, without the prior written consent of the other party. This shall not apply insofar as the disclosure
(i) to the Party’s own employees, Affiliated Companies and/or consultants for the purposes described in 10.2 and on the basis of the need-to-know principle and these recipients are subject to comparable statutory or contractual confidentiality obligations;
(ii) is ordered by a competent court or competent authority in the course of judicial or administrative proceedings; or
(iii) to other third parties is absolutely necessary for the fulfillment of a legal obligation.
In the case of sentence 2 (i), the further handling of the Confidential Information by the third party shall be attributed to the disclosing party. In the cases of sentences (ii) and (iii), the other party shall be informed immediately of the order or legal obligation to the extent permitted by applicable law, so that it can attempt to prevent the disclosure by taking legal action if necessary. In the event that such legal measures are not taken by the other party, the disclosing party shall only disclose the specifically ordered or legally required part of the Confidential Information and shall use its best efforts to ensure that the third party assures the confidential handling of the Confidential Information concerned.
11. Third party claims
11.1 Duty to inform/coordinate. The Parties mutually undertake to inform the other party immediately if a third party asserts claims against them due to a breach of duty from the scope of obligations of the other Party in the provision or use of the Service. The Party concerned shall only take legal action against the third party in consultation with the other Party responsible for the breach of duty or authorize the other party to conduct the dispute.
11.2 Indemnification. The Parties mutually indemnify each other against any liability for third-party claims, including the associated reasonable costs of legal defense, which are based on a breach of duty from the respective other party’s scope of duties when providing or using the Service.
12. Limitations of liability
12.1 Liability for gross negligence/intent. The Provider shall be liable without limitation for damages resulting from an intentional or grossly negligent breach of duty by the provider of a legal representative or vicarious agent of the Provider.
12.2 Exclusion/limitation of liability for slight negligence. The Provider is neither contractually nor non-contractually liable for damages that are based on a slightly negligent breach of duty by the Provider or on a slightly negligent breach of duty by a legal representative or vicarious agent of the Provider. Sentence 1 does not apply insofar as
(i) damages arising from injury to life, limb or health; or
(ii) damage resulting from the breach of obligations, the fulfillment of which is essential for the proper execution of the contract or the breach of which jeopardizes the achievement of the purpose of the contract and on the observance of which the Customer may therefore regularly rely (breach of cardinal obligations).
In the case of (ii), however, liability shall be limited to the amount of damage foreseeable and typical for the contract at the time of conclusion of the contract.
12.3 Exclusion of further liability. Any further liability is excluded. This applies in particular to the Provider’s strict liability for damages pursuant to § 536a (1) Alt. 1 BGB for defects existing at the time of conclusion of the contract.
12.4 Exceptions. The exclusions and limitations of liability in sections 12.2 and 12.3 do not apply to strict liability prescribed by law (e.g. in accordance with the German Product Liability Act (“Produkthaftungsgesetz”; “ProdHaftG”) or liability for the absence of a quality for which the Provider has assumed a guarantee.
13. Term, termination
13.1 Start and duration. The commencement of the provision of the Service and its Initial Term are set out in the Order Form. Upon expiry of the Initial Term, the Service shall be automatically renewed for the Renewal Term agreed in the Order Form, unless the Service is terminated by either Party in accordance with paragraph 2. Sentence 2 shall apply mutatis mutandis to the expiry of the respective Renewal Term.
13.2 Ordinary termination. The Service may be terminated by either party in writing with three months’ notice (for a Term of one year or longer) respectively one week notice (for a monthly Term) to the end of the Initial Term or the respective Renewal Term.
14. Obligations during and after termination
14.1 Further storage of Customer Data. Customer Data is allocated to the Customer account and will remain stored on the Server even after the Service is terminated. The stored Customer Data shall continue to be subject to the agreed regulations on data protection and confidentiality.
14.2 Return of Customer Data. Notwithstanding the possibility of exporting the Customer Data at any time during the Term, the Customer may, as long as Customer Data remains stored, request the Provider to return the Customer Data still stored on the Server at the time of termination of the contract in the format and, if appliable, on the data carrier agreed in the Order Form. The Customer is obliged to reimburse the Provider for the necessary and proven costs incurred for this.
14.3 Deletion of Customer Data. After the Service is terminated the Provider shall delete Customer Data
(i) upon request of Customer to delete its Customer Data and/or its entire account or
(ii) three years of inactivity after the last login to Customer’s account.
Provider shall notify Customer of the planned deletion pursuant 14.3 (ii) one month in advance.
15. Final Provision
15.1 Applicable law. All contractual and non-contractual claims shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The conflict of laws shall not apply.
15.2 Formal requirement. Amendments and additions to the Order Form as well as all declarations and notifications under the Order Form, such as deadlines, warnings, terminations, etc., must be made in writing. This also applies to the waiver of the written form requirement. The written form requirement can also be met by declarations with an electronically transmitted signature (e.g. transmission of an electronic document with a scanned signature via e-mail; transmission of the signed declaration by fax) or, if applicable, via the Customer’s account. Otherwise, Section 127 (2) and (3) BGB shall not apply.
15.3 Contact persons. For the purpose of channeling the communication required – in particular in the event of disruptions in the Service structure – the Parties shall each designate a main contact person in the Order Form who can make and receive legally binding declarations for the respective Party. The other Party shall be informed immediately of any changes to the contact person of one Party.
15.4 Jurisdiction. If the Customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from and in connection with the Order Form is the district court responsible for the registered office of the Provider.
