Terms of service
This Software as a Service contract (hereinafter referred to as the “contract”) is concluded between Fluidon GmbH, Jülicher Straße 338a, 52070 Aachen (hereinafter “Fluidon” or the “Provider”) and the customers who use software products from Fluidon and other associated services, in particular the provision of storage space and support services. Among other things, Fluidon also makes the respective software products available from its servers via the Internet for use via remote data access.
1. Subject of the contract
The subject of this contract is the temporary provision of the software products specified in more detail during the online ordering process as well as the provision of storage space and computing power to the agreed extent (the “contractual services”) by the provider to the customer for use via a remote data connection for a fee.
2. Provision of software
2.1 The provider makes the software product named in section 1 available to the customer for use via the Internet for the duration of this contract. The area of application and functionality of the software product as well as the technical and organizational requirements for its use (e.g. the required bandwidth of the remote data connection) are defined in more detail in the online documentation, which is only available in English.
2.2 The software product is subject to continuous improvement and further development. This may result in the functions and features included in the previous version being changed or no longer available. Fluidon reserves the right to provide more current versions than those made available for use at the start of the contract, provided this does not impair the contractual use. The customer is not entitled to a newer version of the software product originally provided and agreed upon.
2.3 If the provider has significant new features or upgrades of the software product available, the provider will offer these to the customer and notify the associated additional costs.
2.4 The provider will make the software product available at the agreed router output of the data center in which the server is located ("handover point"). With the exception of code that must be stored on the customer's computer for technical reasons for access, the software product remains on the provider's server. The provider is entitled to redefine the transfer point if this is necessary for smooth access to the services owed by him. The customer's obligations to cooperate in accordance with Section 6 also apply to the newly defined handover point. The software product must have the technical usability agreed in Section 2.1 at the handover point.
2.5 The customer must be provided with the access data (user names and passwords) required to use the software product. The access data may not be passed on by the customer. Otherwise, they must be stored securely and kept secret.
3. Provision of storage space
3.1 As part of the use of the software product, the provider will provide the customer with storage space to the agreed extent on a data server of the provider or a third party commissioned by the provider. The customer can use this storage space to store, view and edit certain data that is necessary for using the software product. The costs agreed upon during the ordering process are incurred for the provision of storage space.
3.2 The provider only owes the provision of storage space and securing the data transmitted and processed by the customer. The provider undertakes to take appropriate, state-of-the-art precautions against data loss and to prevent unauthorized third-party access to the customer's data. For this purpose, the provider carries out regular backups. In addition, the provider is not subject to any custody or custody obligations.
3.3 The customer's data can be stored on the data server either as part of the ongoing use of the software product or by transferring it from the customer's database. After concluding a separate agreement, the provider supports the customer in transferring the data from the customer's database for a separate fee. The customer must inform the provider of the technical information required for the transfer at least four weeks before the intended transfer of the data.
3.4 The customer undertakes not to store any content on the storage space provided whose provision, publication or use violates applicable law, official requirements or violates the rights of third parties. The customer further undertakes to check his data and information for viruses or other harmful components before storing them on the data server and to use state-of-the-art measures (e.g. virus protection programs) for this purpose.
3.5 The customer is not entitled to make the storage space made available to third parties available for use, whether for a fee or free of charge.
4. Documentation, Support
4.1 The provider provides the customer with online documentation that explains how the software product works. The provider will update the online documentation if it deems this necessary in the event of further development of the software product.
4.2. The provider also supports and advises the customer regarding the software application or troubleshooting via email support.
5. Granting of rights
5.1 The provider is the sole and exclusive owner of all rights to the software product provided.
5.2 The provider grants the customer a simple, non-exclusive right, which is only transferable in accordance with the provisions in Section 17.3 of this contract and is limited to the term of the contract, to use the software product as intended and only for internal business processes.
5.3 The source code of the software product will not be made available to the customer and the customer undertakes not to carry out, arrange for or enable any reverse engineering, disassembly, decompiling, translation or unauthorized disclosures, unless this is permitted by applicable mandatory law.
5.4 The customer may not reproduce the software product unless this is necessary for contractual use or for the purposes of appropriate backup or emergency recovery or is otherwise permitted under mandatory legal regulations. Contractual reproduction includes loading into the RAM on the provider's server and access via browser in accordance with Section 2.4, but not even temporary installation or saving on the customer's data storage media (such as removable storage devices, hard drives, etc.). Documentation may only be reproduced for internal use.
5.5 The customer is not authorized to grant rights of use to the software product, the online documentation and other accompanying materials supplied to third parties. This does not apply to the transfer of use of the software product to third parties who are not granted an independent right of use and who are subject to the customer's instructions with regard to the use of the software product.
5.6 To the extent that this is necessary for the contractual use, the customer will grant the provider the right to reproduce the data stored by the provider for the customer and to store this data in a backup data center. If it is necessary to eliminate disruptions, the provider is permitted to make changes to the structure of the data and the data format.
6. Customer’s obligation to cooperate
6.1 The customer undertakes to establish and maintain the necessary remote data connection between the transfer point defined by the provider and the customer's IT system in order to use the software product and the associated service offerings.
6.2 The contractual use of the software product requires that the hardware and software used by the customer, including workstations, routers, data communication devices, etc., meet the minimum technical requirements for the use of the software product. The configuration of the customer's IT system required to use the software product is the responsibility of the customer; However, the provider offers to support him for a fee based on a separate agreement.
6.3 Otherwise, the provisions of sections 10 and 11 of this contract apply.
7. Compensation
7.1 The remuneration for the contractual services and their due date are agreed upon during the online ordering process. It is exclusive of the applicable sales tax.
7.2 The provider is entitled to increase the remuneration to be paid accordingly at its reasonable discretion (§ 315 BGB) if additional costs arise. If costs fall, a reduction in remuneration must also be made at reasonable discretion. The timing of the remuneration change must be chosen so that cost reductions can affect remuneration at least to the same extent as cost increases.
7.3 The provider will inform the customer about changes to the remuneration in text form six weeks before the change takes effect, with reference to the right of termination according to sentence 2. In the event of an increase in the remuneration, the customer has the right to terminate the contract extraordinarily.
8. Availability
8.1 The provider undertakes to make economically reasonable efforts to ensure availability of the agreed contractual services on an annual average of 99.9% ("availability").
8.2 Operating hours are 24 hours per day, 7 days per week, less announced maintenance times.
8.3 When determining availability, such downtimes are not taken into account
-
a) the provider is not responsible, in particular for impairments that are due to failures and/or
malfunctions of technical systems and/or network components outside the provider's area of
responsibility; in particular
- - Outages caused by incoming IT attacks. This does not apply if the provider is obliged to use virus protection programs and these did not correspond to the state of the art at the time of the IT attack;
- - Failures caused by improper use of software or hardware by the customer;
- - Failures caused by the software manufacturer's specifications (e.g. installing security patches);
- b) maintenance work agreed with the customer or required unforeseen and for which the provider is not responsible.
8.4 The customer is obliged to immediately notify the provider of any disruptions in IT services, availability restrictions or outages that are apparent to him.
9. Support
9.1 The customer can report disruptions by email (currently: softwaresupport@fluidon.com). Fault reports that reach the provider via email are transferred to a ticket system, where they are further processed and answered.
9.2 Malfunctions are classified into the following priority levels:
- Priority 1 – critical: There is an urgent, operationally preventing disruption that affects the majority of users. There is no way to work around the error. An immediate solution is required.
- Priority 2 – urgent: Important functions are not available and the agreed use is significantly restricted.
- Priority 3 – normal: Individual less important functions are not available or important functions are only available by bypassing the malfunction.
- Priority 4 – not urgent: Only a few users are slightly or sporadically restricted in their work. Normal work is only slightly affected. Simple inquiries about the product or issues with low urgency also fall into this category.
9.3 The provider provides support services during the service period. The service time is Monday to Friday (excluding national holidays) from 8:00 a.m. to 5:00 p.m. CET or CEST. Qualified fault reports are processed within the service period.
9.4 The response time begins with receipt of the qualified fault report within service times and only expires during service times. If the fault report is made outside of service hours, the response time starts at the start of the next service time. The response time ends with the provider's reaction to the message, in particular information on how to handle the problem, a workaround or a query about the problem report.
9.5 Depending on the priority level, the following response times apply:
- Priority 1 – critical: 4 hours
- Priority 2 – urgent: 8 hours
- Priority 3 – normal: 24 hours
- Priority 4 – not urgent: 48 hours
10. Warranty
10.1 The provider guarantees the functionality and operational readiness of the software product and the other contractual services in accordance with the provisions of this contract. Unless otherwise specified below, the statutory warranty regulations apply.
10.2 The provider is liable for defects in the software product provided for a fee and in the storage space in accordance with the warranty rules of tenancy law (§§ 536 ff. BGB), but with the proviso that an obligation to pay damages, contrary to § 536a para. 1 BGB, only applies in the event of fault in accordance with the provisions of Section 10 of this contract.
10.3 A defect exists if the software product does not provide the services contained in the online documentation when used in accordance with the contract and this has a significant impact on its suitability for the contractually agreed use.
10.4 The customer has no warranty claims
- a) if there is only an insignificant deviation from the agreed quality or if there is only an insignificant impairment of the usability of the software product,
- b) in the event of defects caused by non-compliance with the system requirements intended for the software product and specified in the application documentation,
- c) in the event of incorrect operation by the customer,
- d) in the event of the use of hardware, software or other equipment that is not suitable for using the software product,
- e) if the customer does not find a defectreported immediately and the provider was unable to remedy the situation as a result of the failure to report the defect immediately or
- f) if the customer is aware of the defect when the contract is concluded and has not reserved his rights.
10.5 If a defect has been reported by the customer and the customer's warranty claims are not excluded, the provider is obliged to remedy the defect within a reasonable period of time - through measures of its own choosing. The customer gives the provider a reasonable amount of time and opportunity to remedy the defect. For this purpose, the provider's employees and agents are granted free access to the customer's system to the extent that this is reasonable and necessary for the customer.
10.6 In the event of impossibility or failure to remedy the defect, culpable or unreasonable delay or serious and final refusal to remedy the defect by the provider or other unreasonable remedy for the customer, the customer is particularly entitled to reduce the fee owed in accordance with the extent of the impairment (reduction). The user is not entitled to assert a claim for a reduction by independently deducting the reduction amount from the ongoing fee to be paid; The user's right under enrichment law to reclaim the overpaid part of the fee remains unaffected.
10.7 If the contractual services are pure services (e.g. support services), the provider is liable for defects in these services in accordance with the rules of service contract law (§§ 611 ff. BGB).
11. Liability, Indemnification
11.1 The parties have unlimited liability to each other:
- - in the event of fraud, intent or gross negligence;
- - within the scope of a guarantee expressly provided by you;
- - for damages resulting from injury to life, body or health;
- - for the breach of an essential contractual obligation, the fulfillment of which makes the proper execution of this contract possible in the first place and on whose compliance the parties can regularly trust and rely ("cardinal obligation"), but limited to the damage that could reasonably be expected when the contract was concluded;
- - in accordance with the provisions of the Product Liability Act.
11.2 Otherwise, liability of the parties is excluded.
11.3 The above liability rules apply accordingly to the behavior of and claims against employees, legal representatives and vicarious agents of the parties.
11.4 The provider guarantees the customer that the software does not violate the rights of third parties (“infringement of intellectual property rights”). The provider will indemnify the customer from all third-party claims due to infringements of intellectual property rights for which the provider is responsible in connection with the contractual use of the software and will also cover the reasonable costs of legal defense for the customer. The customer will immediately inform the provider about any claims asserted by third parties; he is not entitled to actually or legally recognize such claims unless the provider has previously agreed to this in writing. The claim for exemption according to this section 11.4 only exists on the condition that the customer immediately informs the provider about the assertion of claims by third parties. This does not apply if there is a case of unlimited liability according to Section 11.1.
12. Force Majeure
12.1 If and as long as a case of force majeure occurs, the parties are temporarily released from their performance obligations.
12.2 Force Majeure is an event external to the company, caused externally by elementary forces of nature or by the actions of third parties, which is unforeseeable according to human insight and experience and cannot be prevented or rendered harmless by economically acceptable means, even with the utmost care that can reasonably be expected given the circumstances and should not be accepted because of its frequency.
12.3 The parties may terminate this contract if a force majeure event lasts longer than two months and an amicable contract adjustment cannot be achieved.
13. Data Protection
13.1 If personal data is collected as part of the implementation of this contract, in particular, but not exclusively, when using the software product, the parties shall ensure that data protection regulations are observed.
13.2 Personal data will only be collected and used to the extent required to carry out the contract. The processing of personal data must be carried out in accordance with the customer's instructions; As soon as the provider is of the opinion that one of these instructions violates data protection regulations, it will notify the customer of this be pointed out. The parties agree to the collection and use of such data collected to this extent.
13.3 If necessary, the parties will conclude an agreement on order processing in accordance with the provisions of Art. 28 GDPR. In this context, all employees - especially employees and those responsible who have access to personal data - are obliged to meet the requirements of Article 28 Paragraph 3 Letter c in conjunction with Article 32 Paragraph 4 GDPR.
14. Confidentiality
14.1 Both parties undertake to use all knowledge of the other party's operating and/or business secrets acquired within the scope of the contractual relationship only to implement this contract and to treat it confidentially for an unlimited period of time. Both parties also oblige their employees to maintain confidentiality. Disclosure to third parties is only permitted if they are similarly obliged to maintain secrecy.
14.2 Both parties will also ensure that all persons entrusted with the processing and fulfillment of the contract comply with the legal provisions on data protection. The obligation to maintain data secrecy required by data protection law must be made before the employees begin their work for the first time.
15. Contract term, termination
15.1. This contractual relationship comes into force with regard to the free-to-use version of the software product when the customer orders it online and has an unlimited term.
15.2 With regard to the paid version of the software product, the contract begins with the confirmation of the conclusion of the contract by the provider. He has an initial term as agreed in the online order. The contract term will then be extended as follows:
- - If booking monthly, automatically for another month,
- - if booked annually, automatically for another year,
- - 3 days for monthly bookings,
- - 28 days for annual bookings
15.3 The right of both parties to extraordinary termination for good cause remains unaffected. An important reason exists in particular if one party intentionally or negligently violates an essential obligation from this contract (e.g. violation of the cardinal obligations, Section 10.1 of this contract) and it is therefore no longer reasonable for the terminating party to adhere to the contract.
15.4 The provider is entitled to do so in particular if the customer repeatedly defaults on payment or if payment is late by two months or more. The provider is also entitled to extraordinary termination of the contract if the customer violates an obligation according to section 5 of this contract and the provider has previously warned him.
15.5 Termination of this contract must be in text form.
16. Data and software release upon termination of the contract
16.1 In the event of termination of the contract, the customer is responsible for backing up his data himself. The provider will provide him with a period of 30 days after termination of the contract. The provider will then delete the remaining data.
16.2 Rights of retention as well as the statutory landlord's lien in accordance with Sections 562 and 578 of the German Civil Code (BGB) in favor of the provider with regard to the customer's data are excluded.
16.3 Any use of the software product after termination of the contractual relationship is not permitted.
17. Final provisions
17.1 Should one of the provisions of this contract or a provision subsequently incorporated into it be or become wholly or partially void or unenforceable, or should a gap in this contract become apparent, this will not affect the effectiveness of the remaining provisions (preservation). It is the express intention of the parties to maintain the effectiveness of the remaining provisions under all circumstances and thereby to waive Section 139 of the German Civil Code (BGB) in its entirety. Instead of the void or unenforceable provision or to fill the gap, the effective and enforceable provision is deemed to be determined with retroactive effect, which comes legally and economically closest to what the parties wanted or would have wanted according to the meaning and purpose of this contract if they had accepted it point when concluding this contract or when entering into the provision; If the invalidity of a provision is based on a measure of performance or time specified therein (deadline or date), the provision is deemed to have been agreed with a legally permissible measure that comes closest to the original measure (fiction of replacement). If the fictional replacement is not possible, a provision or regulation must be made in accordance with the content of the previous sentence instead of the void or unenforceable provision or to close the gap (replacement obligation). If the invalidity or gap relates to a provision that requires notarization, the regulation or provision must be agreed in a notarized form.
17.2 Changes and additions to this contract, including this clause 17.2, must be made in writing, unless otherwise specified.
17.3. The parties may assign or transfer this Agreement and the rights and obligations arising from this Agreement to a third party only with the prior written consent of the other party. Consent may not be unreasonably withheld.
17.4 There are no oral or written additional agreements to this contract. The validity of the general terms and conditions of both the provider and the customer is expressly excluded.
17.5 The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Aachen.
17.6 With regard to all legal relationships arising from this contract, the parties agree to the application of the law of the Federal Republic of Germany, excluding its conflict of law provisions and the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (UN Convention on Contracts for the International Sale of Goods).
