These General Terms and Conditions (hereinafter “GTC”) govern conclusively the contractual relations between the Solytic GmbH (hereinafter “Provider”) and Customer with regards to the services of Provider specified in the Framework Agreement. Other contracts, in particular Customer’s general terms and conditions, do not apply.
The following terms shall have the meaning given below.
- “Documentation” means the user documents provided to Customer together with the Software.
- “Business Day” means a weekday that is not a Saturday, Sunday or a public holiday at the corporate seat of Provider.
- “Customer” means the legal or natural person named as such in the Framework Agreement.
- “Usage Fee” means the fee stated in the Framework Agreement for the provision of the Software.
- “Software” is the software of Provider specified in the Framework Agreement.
- “Material” has the meaning given under section II.1.
- “User” means a specific person using the Software on the end devices.
- “Framework Agreement” means an order form of Provider with which Customer can order Software or Services from Provider.
- “Services” is a collective term covering consultancy services, training services and/or support services.
- “Software Subscription” means Customer’s right to use the Software listed in the Framework Agreement.
- “Subscription Period” means the period specified in the Framework Agreement for which a Software Subscription is valid.
- “Extension Period” has the meaning indicated in the Framework Agreement.
II. Provision of Software, scope and limitations of use
1. Provision of Software: Provider shall make the Software indicated in the Framework Agreement (the combination of modules specified in the Framework Agreement) (hereinafter the “Software”) available to Customer via online access for the duration of Subscription Period. Provider grants Customer, against payment of the Usage Fee by Customer, step by step (Zug um Zug) a non-exclusive, non-transferable right, valid for the duration of this Agreement, to access the Software and the related Documentation (the Software and the Documentation jointly referred to as “Material”) pursuant to these GTC and the information provided in the Documentation without prejudice to mandatory statutory provisions in accordance with the scope of use stated in the Framework Agreement via the log-in data sent by Provider, and to use it for its own business purposes in accordance with the above. Provider is entitled but not obliged to install updates to the extent that this serves to improve the use of the Software. Customer is not entitled to time availability of the software or 100% data availability.
2. Scope of use and Functionalities: Subject to the provisions of this contract (in particular the information contained in the Framework Agreement), Customer is entitled to use the Material to the extent specified in the Framework Agreement (Subscription Period, number of users) for its own purposes, including advising its customers. Customer shall ensure that the Material is used exclusively by the authorised user(s) specified in the Framework Agreement. The scope of use shall include the combination of modules specified in the Framework Agreement with the functionalities described in the Documentation.
3. Restriction of Use: Customer undertakes to use the Software in accordance with the contract and not to pass it on to third parties (persons other than the authorized users named in the Framework Agreement), nor to make it accessible to third parties in any other way. Customer is not entitled to reverse engineer, decompile, disassemble, modify, duplicate or to use any part of the Software to create a separate application. Customer undertakes (i) not to modify, copy, use or create derivative works of the Software in any manner whatsoever, except as expressly permitted in this Agreement (ii) not to attempt to circumvent, deactivate or thwart technical restrictions of use of the Software; (iii) not transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software, in whole or in part, to any third party (other than those authorized users named in the Framework Agreement); (iv) not modify or remove any proprietary notices on the Software; (v) not use the Software to provide its own time-sharing services, software-as-a-service (“SaaS”) offerings, service office or as part of any application service provider or service offering.
Customer is not entitled to connect the Software with other computer programs that were not allowed by the Provider. A connection in the aforementioned sense does not include the use of the Software on an operating system which controls the essential functions of a computer and enables its use. The Software and its components may not be unbundled for use on different computers. In particular, the unbundling or repackaging of the Software for distribution, transfer or (further) rental is not permitted. If Customer violates any of the above provisions, all rights of use granted within the framework of the agreement shall immediately become invalid and automatically revert to Provider. Provider shall be entitled to block access to the Software. In each case, Customer shall immediately and completely cease using the Software.
4. Provider is entitled to demand from Customer a list of those persons who actually use the Software within the scope of the granted right of use in the event of circumstances which indicate the use of the Software by persons other than the authorised users. Customer is obliged to prepare such list fully and truthfully immediately after the request of Provider and to make it available to Provider. If Customer does not properly fulfill its obligation to prepare such a list or if the list is incorrect and/or incomplete, Provider is entitled to extraordinarily terminate the relevant right of use. Further claims of Provider remain unaffected.
Provider is entitled to all industrial property rights attached to the Material or existing in connection therewith. Customer’s ownership of data carriers, data storage devices and other hardware shall not be affected thereby, nor shall Customer’s rights to the consulting cases saved and stored in the download file. However, Customer shall ensure that before the destruction, sale or other forms of transfer of data carriers, data storage devices or other hardware, any Material stored therein is completely deleted.
III. Provision of the Software, Operating Conditions and System Requirements
- The use of the Software begins with the initial provision of the Software by the enabling of its use (e.g. by sending the information required for log-in).
- The Software was developed for use with an Internet Browser and will be optimized on the newest Version of the Google Chrome TM Browser. These operating conditions are specified in the Framework Agreement. If the Software is used without compliance with such operating conditions, Provider’s warranty obligations in accordance with these conditions of use shall lapse.
- Customer shall ensure that the system requirements stated in the Framework Agreement te are available to it.
IV. Warranty (Gewährleistung); Duties of Customer to Cooperate
- In the event of defective performance, Customer shall be entitled to first demand rectification of the defect and, if the defect has not been rectified within four weeks of notification, to a reasonable reduction of the Usage Fee for the duration of the defect.
- Provider does not guarantee that the complex Software is free of defects, errors, bugs or temporary server failures despite the greatest possible care.
- Customer is obliged to make available to Provider verifiable data and information on the type and occurrence of deviations from the Service Description of the Software and to as-sist with locating and identifying errors and sources of errors.
- Provider is only liable for the loss of data up to the amount necessary for recovering the data if it had been properly and regularly backed up.
- Provider shall be liable for damages based on wilful or grossly negligent or malicious breach of duty of Provider, its legal representatives or agents. If Provider is liable for grossly negligent breach of duty according to sentence 1, liability shall be limited to the foreseeable, typically occurring damage.
- Provider shall also be liable for damages caused by simple negligence if the neglince concerns essential contractual obligations, the observance of which is of special significance for achieving the object of the contract and on whose observance Customer may regularly rely (cardinal duties). In this case, liability shall be limited to the foreseeable, typically occurring damage.
- Provider shall further be liable to an unlimited extent for damages to life, body and health occuring due to negligent or wilful breach of duty. Furthermore, if Provider has warranted procurement or durability of the contractual products, Provider shall be liable within the scope of this warranty.
- Any further contractual or statutory liability – unless required by law – is excluded, irrespective of the legal nature of the asserted claim.
- If liability of Provider is excluded or limited, this shall also apply to personal liability of employees, workers, staff, representatives and agents of Provider as well as to liability of Provider for their conduct.
VI. Industrial Property Rights and Copyrights; Defects of Title
- Unless otherwise agreed, Provider is obliged to carry out delivery free of industrial property rights and copyrights of third parties (hereinafter: “Property Rights”) only in the country of the place of performance. If a third party asserts justified claims against Customer on account of the infringement of Property Rights due to deliveries carried out by Provider in accordance with the contract, Provider shall be liable to Customer as follows:
- Provider shall, at its discretion and at its own expense, obtain a right of use for the relevant deliveries, modify them in such a way that Property Rights are not infringed or replace them if and insofar as the functionality of Software is not significantly impaired as a result. If this is not possible for Provider under reasonable conditions or if Provider’s subsequent performance fails within a reasonable grace period set by Customer, Customer may withdraw from contract or reduce the price under the statutory conditions.
- Provider’s obligation to pay damages shall be governed by section V of these GTC.
- The aforementioned obligations of Provider shall only exist if Customer immediately and in writing informs Provider about the claims asserted by the third party, does not acknowledge an infringement and all defence measures and settlement negotiations remain reserved to Provider; in this context, Customer shall grant Provider all authorizations and powers necessary to defend the Software against the asserted rights of third parties. If Customer stops using Services for damage reduction or other important reasons, it shall be obliged to notify the third party that the suspension of use does not constitute an acknowledgement of an infringement of Property Rights.
- To the extent Customer is responsible for the infringement of Property Rights, claims of Customer shall be excluded.
- Claims of Customer shall also be excluded insofar the infringement of Property Rights is caused by special requirements of Customer, by an application not foreseeable by Provider or by a change to the delivery made by Customer.
- Provider reserves unrestricted property rights, copyrights and resulting exploitation rights regarding cost estimates, drawings, manuals and other documents (hereinafter: “Documents”). Documents may only be made accessible to third parties with prior consent of Provider and, if the order is not placed with Provider, must be returned immediately upon Provider’s request.
- In the event of other defects of title, the provisions in section IV of these GTC (material defect warranty) shall apply accordingly.
- Further or other claims of Customer against Provider and Provider’s vicarious agents due to a defect of title than those regulated in this section VI are excluded.
VII. Customer’s own content
Insofar Customers are permitted to post their own content using the Software, the following shall apply:
- Customers may upload or have uploaded their own content (e.g. images and texts), provided that the data room made available for this purpose is sufficient. The Customer does not have any claim to the publication of submitted content, nor to the permanent retention of content on the website. The Provider is thus permitted to remove content that has already been published. The Provider accepts no responsibility for the content, correctness and form of the information provided. Furthermore, the Customer undertakes to protect the rights of third parties and not to violate them. These include in particular trademark rights, personal rights and copyrights.
- It is not permitted to post content that glorifies violence, is pornographic or discriminatory. Also inadmissible is the content to violate the personal honour or to offend against the law or morality.
VIII. References and Links
The following applies insofar as the Software contains links or references to third-party websites:
- The responsibility for these external contents lies solely with the third party providing the contents. The role of the Provider lies solely in providing access to the use of this content. The Provider has no influence whatsoever on the current design, content or authorship of the linked pages. For this reason, the Provider hereby expressly distances himself from all contents of all linked pages vis-à-vis the Customer and other third parties.
- For illegal, incorrect or incomplete contents and in particular for damages arising from the use or non-use of information provided by third parties, the third party alone shall be liable as the provider of the page to which reference is made and not the party who merely refers to the respective publication via links.
IX. Support and Updates
- Provider reserves the right to change, supplement or delete the design and content of the website without prior notice or to temporarily or permanently cease publication of the services.
- As far as chargeable services are concerned by this, the provider will offer an equivalent alternative or refund the received payment to the user proportionately at his choice.
- Insofar as claims are granted in these GTC due to changes or discontinuation of Services or the Website, the User shall not be entitled to any claims for damages, reimbursement of expenses or other claims.
- Customer may contact Provider via email to solve problems and possible malfunctions with regard to the Software. This form of support constitutes an additional service that is free of charge for the Customer and may be supplemented or changed by Provider at any time. Provider is expressly entitled to commission subcontractors to process Customer’s email inquiries. Email inquiries of Customer are to be sent to the following email address: firstname.lastname@example.org. The email shall contain a description of the technical problem, the user name, the web browser used and any other relevant information describing the matter. Further details to be included are the contact details (telephone numbers) through which the respective Customer can be reached. Customer shall ensure that in any communication with Provider or the subcontractors commissioned by Provider for the provision of care and maintenance services, customer data is only transmitted in anonymous form and there would be no direct inferrences to individual natural persons. If Provider receives personal data from end customers within the scope of the support in contravention of the above provision, the provisions of section XII of these GTC shall apply mutatis mutandis to such personal data.
X. Transfer; Assignment
- Customer is not entitled to assign rights attached to the Material, in particular the right to use the Software, to third parties without the prior written consent of Provider.
- If an assignment and/or transfer in the aforementioned sense has nevertheless taken place, Customer is obliged to inform Provider of the name and address of the third party. Further rights of Provider in the event of unlawful assignment and/or transfer of the Software shall remain unaffected.
- Customer is obliged to protect the Software from unauthorized access by third parties and shall ensure that the Material (including the Software) is not copied, publicated or otherwise disclosed in whole or in part unless permitted under user agreement. Customer acknowledges that the Software contains valuable confidential information and trade secrets, and that unauthorized use and/or unauthorized copies may cause damage to Provider.
- Customer undertakes towards Provider to keep secret all confidential information that has become or will become known to it before and/or during execution of this agreement, in particular to prevent any access to such information by third parties. Customer shall oblige all its entitled users, employees and contractors to maintain secrecy to the same extent, unless they are already obliged to do so under their employment contract.
- Confidential information in the sense of this agreement is all information marked as confidential by Provider or information whose confidentiality is evident from the circumstances.
- The obligation to maintain secrecy according to section XI.2 shall not apply to confidential information (i) already known or generally known when Customer became aware of it or which becomes known without breach of confidentiality obligations; (ii) provided to Customer by a third party without breach of confidentiality obligations towards Provider; (iii) developed by Customer independently of this agreement or (iv) if and insofar as the confidential information is to be surrendered based on an enforceable administrative or court order and Customer has immediately informed Provider after becoming aware of the disclosure obligation and given Provider the opportunity to take action against the disclosure.
XII. Data Protection and Order Processing
- If Customer transmits personal data to Provider in a non-anonymous form, Customer shall be solely responsible – with regard to the legal relationship between the parties – for the legality (under data protection regulation) of the transmission of data to Provider and its contractually agreed collection, processing or use. In this respect, Customer shall in particular ensure that the requirements for order data processing are met, so that Provider, as an order data processor for Customer, may collect, process or use personal data of third parties within the scope of the use of the Software or the provision of services. For this purpose, the parties conclude the agreement on order data processing attached to these terms and conditions and in accordance with the requirements of the General Data Protection Regulation (GDPR).
- Provider uses personal data provided by Customer exclusively for the performance and execution of the contract. As far as Provider is controller within the meaning of data protection law, the natural persons whose personal data is stored by Provider are entitled to the rights of information, correction, blocking and deletion granted by the GDPR. These rights shall be exercised by sending a message by post or by electronic mail to the following e-mail address: email@example.com. If Provider acts as Customer’s order data processor, Customer shall be entitled to the corresponding rights of information. After contractual relationship expires, personal data shall be deleted immediately. Such deletion shall be replaced by a blockage of data if deletion is not permitted because of legal, statutory or contractual retention periods, in particular, but not exclusively, for the execution of the contract.
XIII. Term; Termination
- Subject to the Framework Agreement, this Agreement shall enter into force upon its conclusion and shall be in effect for the period specified in the Framework Agreement.
- The right to extraordinary termination of this contract for good cause remains unaffected. In particular, the following shall be considered good cause for extraordinary termination by Provider:
- Customer being more than four (4) weeks in default with payment or
- Customer providing third parties with unauthorized access to Software.
- Termination shall be exercised in writing (e-mail to the address provided by the other party is sufficient).
- Upon termination of this agreement, all rights of Customer to use the Software and the Material shall expire. Customer shall return to Provider the Material and any copies made thereof or delete or destroy them in accordance with Provider’s instructions and, at Provider’s request, provide written confirmation as proof of compliance with this obligation.
- All payment obligations relating to this agreement and arising before termination of con-tract and all provisions regarding confidentiality, ownership, industrial property rights as well as protection and restrictions regarding use of the Material shall continue to apply even after partial or complete termination of this agreement.
- If Customer continues to use the Material (in particular the Software) after termination of usage agreement or if Customer does not prevent such use by another user, Customer shall be obliged to pay Provider compensation in the amount of the Usage Fee that would have incurred for the period of use and to compensate for any further damages if and insofar as Customer is responsible for the violation.
- Customer may only offset its own claims against claims of Provider or assert rights of retention due to such claims if those claims are undisputed or legally established.
- If Customer is a merchant (“Kaufmann”), legal entity of public law or of special fund under public law, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the place of business of Provider. However, Provider shall also be entitled to file lawsuits at the general place of jurisdiction of Customer.
- The legal relations in connection with this contract shall be governed by German substantive law under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- Provider remains entitled to change these GTC with effect for the future. Customer shall be informed of any such changes in writing (e-mail sufficient). Changes shall become effective unless Customer has objected to them in writing to Provider within four (4) weeks of receipt of notification pursuant to sentence 2. In written notification pursuant to sentence 2, Provider shall expressly notify Customer again of the significance and legal consequences if no objection is raised. If Customer objects to any changes to these GTC, both Provider and Customer may extraordinarily terminate the agreement affected by such change (Section XIII.2 of these GTC).
Status: Berlin, October 2019