1. Subject of the contract
The Software is operated by the Provider as a Software as a Service or cloud solution. The Customer shall be enabled to use the Software stored and running on the servers of the Provider or a service provider commissioned by the Provider via an Internet connection for their own purposes during the term of this contract and to store and process their data with its help.
2. Registration, Conclusion of the Contract
With the setup and granting of access this user agreement is considered concluded.
3. Trial period
The Provider may grant Customers the right to use the Software free of charge exclusively for testing purposes ("Trial Period"). Unless specified otherwise, the trial period is 14 days. The trial period may be extended by the Provider. Whether the trial period is extended is solely at the discretion of the Provider.
After expiration of the trial period, the Customer’s access will be blocked. There is no automatic conversion into a contract for paid use of the Software. The Provider is entitled to block access to the Software at its own discretion even before the expiry of the trial period, in particular in order to limit improper use.
For continued use of the Software after the trial period has expired, a License Agreement must be concluded that governs the type and scope of services as well as any remuneration.
Within the scope of a free trial period, the Provider does not provide any product support and does not guarantee any functionality or availability of the Software.
4. Nature and extent of the service
The Provider shall make the Software available to the Customer for use to the extent agreed in the License Agreement at the router exit of the data center where the server with the Software is located ("Transfer Point"). The Software, the computing power required for use and the necessary storage and data processing space shall be provided by the Provider. The Provider does not owe the establishment and maintenance of the data connection between the Customer’s IT systems and the described Transfer Point.
Since the Software runs exclusively on the servers of the Provider or service providers commissioned by the Provider, the Customer does not need any copyrighted rights to the Software, and the Provider does not grant any such rights. For the duration of the contract or during the free trial period, however, the Provider grants the Customer the non-exclusive, non-transferable right, limited in time to the period agreed in the contract or for the trial period, to load the user interface of the Software for display on the screen into the main memory of the end devices used for the purpose in accordance with the contract and to make the resulting copies of the user interface and to use the Software for the contractual purposes in accordance with the product description.
5. Changes in service
The Provider may change the Software at any time for good cause. Such a reason exists in particular if the change is necessary due to (i) a necessary adjustment to a new legal situation or jurisdiction, (ii) the protection of system security, or (iii) to prevent misuse.
In addition, the Provider may modify the Software appropriately in the context of continuous development (e.g., deactivation of old functions that are largely replaced by new ones), in particular to take account of technical progress.
6. Availability of the Software
The availability of the Software shall be governed by the License Agreement. Clause 3 para. 4 shall apply for the free trial period.
The Provider draws the Customer’s attention to the fact that restrictions or impairments of the services provided may arise that are beyond the Provider’s control. This includes, in particular, actions of third parties not acting on behalf of the Provider, technical conditions of the Internet that cannot be influenced by the Provider, as well as force majeure. The hardware, software and technical infrastructure used by the Customer can also have an impact on the Provider’s services. Insofar as such circumstances influence the availability or functionality of the service provided by the Provider, this shall have no effect on the contractual conformity of the services provided.
The Customer is obliged to report functional failures, malfunctions or impairments of the Software to the Provider immediately and as precisely as possible. If the Customer fails to do so, § 536c BGB shall apply accordingly.
7. Data processing rights, data backup
For the purposes of implementing the contract, the Customer grants the Provider the right to copy the data to be stored by the Provider for the Customer, insofar as this is necessary to provide the services owed under this contract. The Provider shall also be entitled to keep the data in a failover system or separate failover data center. In order to eliminate failures, the Provider shall furthermore be entitled to make changes to the structure of the data or the data format.
The Provider shall regularly back up the Customer’s data on the server for which the Provider is responsible to an external backup server. Note that certain information (such as source codes and pull requests) is always fetched live from GitHub, and therefore will not be included in the backup.
If and to the extent that the Customer processes or allows personal data to be processed on IT systems for which the Provider is technically responsible, a data processing agreement must be concluded.
A support case exists if the Software does not fulfill the contractual functions according to the product description. The manner of reporting a malfunction is governed by the License Agreement, as is the scope of the support services. Clause 3 para. 4 shall apply for the free trial period.
If the Customer reports a support case, they must provide a description of the respective malfunction that is as detailed as possible in order to enable the most efficient troubleshooting possible.
The parties may conclude a separate agreement on the provision of support, maintenance and servicing services.
The payment period and the amount of the remuneration as well as the method of payment shall be governed by the License Agreement. Unless otherwise agreed by the contracting parties, remuneration shall be due without deduction immediately after performance of the service and receipt of the invoice by the Customer and shall be paid within 14 days of the invoice date.
If the Customer delays the payment of a due remuneration by more than four weeks, the Provider shall be entitled to block access to the Software after prior reminder with setting a deadline and expiry of the deadline. The Provider’s claim to remuneration remains unaffected by the blocking. Access to the Software will be reactivated immediately after payment of the arrears. The right to block access shall also exist as a milder means if the Provider has a right to extraordinary termination persuant to Clause 14 para. 3.
Remuneration for other services shall be agreed separately between the Provider and the Customer as required.
10. Obligations of the Customer to cooperate
The Customer shall support the Provider in providing the contractual services to a reasonable extent.
The Customer shall be responsible for the proper and regular backup of their data, including source codes and pull requests hosted on GitHub used in conjunction with this Software. This also applies to the documents provided to the Provider in the course of the contract execution.
For the use of the Software, the system requirements resulting from the product description or the License Agreement must be fulfilled by the Customer. The Customer shall be solely responsible for this.
The Customer shall keep the credentials made available to them confidential and shall ensure that any employees to whom credentials are provided do likewise.
In principle, the statutory regulations on warranty apply. The §§ 536b (knowledge of the tenant of the defect at the time of conclusion of the contract or acceptance), 536c (defects occurring during the rental period; notification of defects by the tenant) BGB apply. However, the application of § 536a para. 2 (tenant’s right of self-remedy) is excluded. The application of § 536a para. 1 BGB (liability for damages of the landlord) is also excluded insofar as the standard provides for strict liability.
12. Liability and compensation for damages
The Provider shall be liable for damages of the Customer caused intentionally or grossly negligently, which are the consequence of the absence of a guaranteed quality, which are based on a culpable violation of essential contractual obligations ("Cardinal Obligations"), which are the consequence of a culpable injury to health, body or life, or for which a liability is provided for under the Product Liability Act, in accordance with the statutory provisions.
Cardinal obligations are such contractual obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner may regularly rely, and whose violation on the other hand endangers the achievement of the purpose of the contract.
In the event of a breach of a cardinal obligation, the liability - insofar as the damage is merely due to slight negligence - shall be limited to such damage as may typically be expected to occur when using the contractual Software.
If damage to the Customer results from the loss of data, the Provider shall not be liable for this, insofar as the damage would have been avoided by the Customer making a regular and complete backup of all relevant data. The Customer shall carry out a regular and complete data backup themselves or have it carried out by a third party and shall be solely responsible for this.
No liability is assumed for damages, consequential damages or lost profits due to circumstances beyond the control of the Provider.
Otherwise, liability - regardless of the legal basis - is excluded.
13. Customer data and indemnification from third party claims
As a technical service provider, the Provider stores content and data for the Customer, which the Customer enters and stores when using the Software and makes available for retrieval. The Customer is obliged not to enter any contents and data that are punishable by law or otherwise illegal in absolute terms or in relation to individual third parties, and not to use any programs containing viruses or other malware in connection with the Software. The Customer shall remain the responsible party with regard to personal data and shall therefore always check whether the processing of such data via the use of the Software is covered by the relevant permissions.
The Customer shall be solely responsible for all content used and data processed as well as for any legal positions that may be required for this. The Provider does not take any notice of contents of the Customer and generally does not check the contents used by the Customer with the Software.
In this context, the Customer undertakes to indemnify the Provider from any liability and any costs, including possible and actual costs of legal proceedings, if claims are made against the Provider by third parties, including employees of the Customer personally, as a result of alleged actions or omissions of the Customer. The Provider shall inform the Customer about the claim and, to the extent legally possible, give the Customer the opportunity to defend the asserted claim. At the same time, the Customer shall immediately provide the Provider with all information available to them on the facts of the case which are the subject of the claim in full.
Any further claims for damages of the Provider shall remain unaffected.
14. Contract period and termination of the contract
The contract period and the termination period shall be based on the License Agreement.
The contract is automatically renewed for the duration of the contract period if it is not terminated by one of the parties by the end of the termination period.
Both parties reserve the right to extraordinary termination for good cause if the legal requirements are met. Good cause for the Provider shall be deemed to exist in particular if the Customer is more than two months in arrears with the payment of a due remuneration despite a reminder. If the Customer is responsible for the reason for termination, the Customer shall be obliged to pay the Provider the agreed remuneration less any expenses saved by the Provider up to the date on which the contract would end at the earliest in the event of ordinary termination.
Declarations of termination must be in text form or in electronic form that permits documentation in accordance with standard business practice in order to be effective. An email is also sufficient for this purpose.
After termination of the contract, the Provider shall return to the Customer all documents provided by the Customer and still in the possession of the Provider as well as data carriers related to the present contract and delete the data stored by the Provider, unless there are retention obligations or rights.
The parties are obliged to keep permanently secret, not to disclose to third parties, to record or to use in any other way all information about the respective other party which has become known or will become known to them in connection with this agreement and which is marked as confidential or is recognizable as business and trade secrets on the basis of other circumstances (hereinafter: “Confidential Information”), unless the respective other party has expressly consented in writing to the disclosure or use or the information is required to be disclosed by law, court decision or an administrative decision.
The Information shall not be considered Confidential Information within the meaning of this Clause 15 if:
- it was already known to the other party in advance without the information being subject to an obligation of confidentiality,
- it is generally known or becomes known without violation of the confidentiality obligations assumed,
- it is disclosed to the other party by a third party without breach of a confidentiality obligation.
The obligations under this Clause 15 shall survive the end of this agreement.
16. Transfer of rights and obligations
The assignment of the rights and obligations under this contract is only permitted with the prior written consent of the Provider. The Provider is entitled to entrust third parties with the fulfillment of the obligations arising from this contract.
This agreement and any amendments as well as all declarations, notification and documentation obligations relevant to the contract must be in writing or in electronic form that permits documentation customary in business, unless another form has been agreed or is required by law.
The contract shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods. The place of jurisdiction shall be the registered office of the Provider, insofar as the Customer is a merchant, a legal entity under public law or a special fund under public law.
Should individual provisions of this agreement be invalid, the validity of the remaining provisions shall not be affected. In this case, the parties shall cooperate to replace invalid provisions by such provisions which correspond as closely as possible to the invalid provisions.
This user agreement is based on Standard-Vertragsbedingungen SaaS- und Cloudsoftware (CC BY 3.0 DE) by Copyright OSB Alliance e.V., Version 1/2015.
These terms were last updated October 12, 2023.