The Provider (cx/omni GmbH, Konrad-Zuse-Platz 8, 81829 Munich, Germany) makes a software solution available for use by corporate customers (hereinafter, the “System User”). This software, which is protected under copyright laws for the benefit of the Provider and/or its system partners, involves a web-based software. The System User has evaluated the software solution and found it to be entirely suitable for the System User’s tasks and business processes. The Provider shall make this software available for use via the Internet as a SaaS [Software-as-a-Service “SaaS”] solution. The System User and its users (hereinafter, “Users”) wish to use the software as a SaaS solution.
On this backdrop the contracting parties hereby conclude the following Software-as-a-Service (SaaS) Contract (hereinafter, “Contract”):
1. Subject matter of the contract / Provider’s performance obligations
1.1 The subject matter of the contract is the program package “cx/omni CEM cloud”. The individual program modules contained in the program package “cx/omni CEM cloud” are specified on the website cxomni.net. The software “cx/omni CEM cloud” and the program modules identified at cxomni.net shall subsequently be referred to as “Contract Software”.
1.2 The Provider shall make available to the System User, or through a third party engaged by Provider, the Contract Software that is conclusively described at cxomni.net and in the user documentation for use via the Internet. Consequently, the System User shall obtain the technical potential and a license to gain access over the Internet to the Contract Software, which is hosted on a central server, and to use the functionalities of the Contract Software within the framework of this Contract. The System User may use the application software for its own purposes, and for processing and storing the System User’s data. The System User shall obtain an authorization to pass on this licensing to end-users (hereinafter, “Users”) within the permissible scope of services.
1.3 Delivery for the Provider’s contractual services is located at the router port of the computer center used by the Provider. Not included in the subject matter of this Contract is the System User’s connection to the Internet, the maintenance of the network connection, and obtaining and providing the hard- and software required on the part of the System User or for its own account.
1.4 The Contract Software is available seven days a week and 24 hours per day (“Service Times”). The average availability during Service Times is 98.5% as a monthly average. During the remaining times (“Maintenance Times”) the application can nevertheless be available if necessary with interruptions and limitations; however, there is no right to demand use of the application. In the event that maintenance work becomes necessary during Service Times and the application is therefore unavailable, the Provider shall timely inform the System User concerning this as far as possible.
1.5 The Provider shall transmit to the System User the required access data for identification and authentication for using the System User administration area of the application (“System User Backend”). It is not permissible for the System User to give this access data to third parties if this does not involve an additional account identified to the Provider that was taken into account in calculating the fee. The System User shall inform the Provider about additional users for the System User Backend prior to their commencing their use. If agreed, the Provider shall undertake a corresponding adjustment of the fee calculation.
1.6 The Provider shall make available for the System User in the accessible software solution or at cxomni.net German language user documentation in the form of help information exclusively in electronic form.
1.7 The Provider shall make available to the System User the storage space conclusively described at cxomni.net and shall undertake to secure the data transferred. The Provider shall employ virus scanners and firewalls so as to impede and/or prevent unauthorized access to the System User’s data and the transmission of viruses to the extent that this is possible with reasonable commercial and technical expense. However, the System User is aware that complete protection against damaging data is not possible. In the case that a threat cannot be removed by reasonable technical and commercial means with a likely favorable outcome, the Provider is entitled to delete the System User’s data (or for its account) that is corrupted with damaging content. The Provider shall inform the System User about this deletion.
1.8 To the extent that the System User transmits data—irrespective of the form—to the Provider, the System User shall produce backup copies of this data on its own data carriers. The Provider shall routinely backup its servers and protect against access by unauthorized third parties with reasonable technical and commercial expenditure. The Provider shall ensure data backup of the data sets (file system and databases) in the course of a standard procedure. Should the System User desire additional security measures, these are possible in return for separate fees. In the event of that data loss nonetheless occurs, the System User shall once again transfer the affected data to the Provider’s servers. The System User is solely responsible for complying with storage periods as required under commercial and tax law.
1.9 The Provider shall undertake support for the Contract Software, in particular the diagnosis and removal of defects within a reasonable time period. Defects are material deviations from the contractually stipulated specifications. Additional support services may be rendered by the Provider in return for separate remuneration.
1.10 The Provider is not obligated to perform any additional services insofar as these are not expressly mentioned above. In particular the Provider is not obligated to render installation, set up, consulting, adaptation and/or training services as well as the creation and delivery of individualized programming or add-on programs if these are not expressly specified at cxomni.net.
2. Rights of Use
2.1 The Provider grants to the System User, for the term of this Contract and for consideration, a non-exclusive, non-transferable and non-sublicenseable right to use the Contract Software on the system in the Provider’s computer center. There will be no transfer of the Contract Software to the System User. To the extent that the Provider makes available new versions, updates or upgrades of the Contract Software during the term of this Contract, the right of use set out above shall apply in the same manner for such upgrades. However, the Provider is not obligated to provide new versions, upgrades or updates if these are not necessarily required for removing defects or unless otherwise agreed elsewhere in this Contract. Beyond the purposes of this Contract the System User is not authorized to use, duplicate, download or make accessible to third parties outside the agreed circle of users the Contract Software or data other than the System User’s own data.
2.2 For every separate instance in which the System User culpably allows use of the Contract Software by a third party, the System User must in each case pay compensatory damages in the amount of the remuneration that would have accrued in the case of concluding a contract for an individual user for an ordinary term of two years. The System User retains the right to prove that there are no damages or that there is a materially lesser damage amount. All other rights of the Provider shall remain unaffected by the above provision.
2.3 In the event of unauthorized use and/or unauthorized use that has been allowed to occur, the System User must immediately communicate to Provider, upon Provider’s request, all information for asserting claims against the user, in particular the user’s name and address.
2.4 If use of the Contract Software according to the Contract is impeded by third party industrial property rights without fault on the part of the Provider, Provider is entitled to refuse performance of the services affected thereby. The Provider shall promptly inform the System User of this and enable access to the latter’s data in an appropriate manner. In this case the System User is not obligated to make payment. Other claims or rights of the System User remain unaffected hereby.
3. System User Obligations
3.1 The System User shall fulfill all of the obligations necessary for rendering the services and implementing this Contract in a timely, complete and technically proper manner.
3.2 The System User shall make available a responsible employee to be identified by name as a contact person. This contact person shall in particular provide the information necessary for implementing this Contract and is deemed authorized to make legally binding decisions. The System User may designate a different or an additional contact person. Changes made in respect to the individual acting as a contact person must be promptly communicated to the Provider.
3.3 In addition, the System User has sole responsibility for ensuring that the System User and its Users have at their disposal an Internet connection and suitable soft- and hardware features and/or a configuration according to the provisions in the description “System Requirements” at cxomni.net. The operation and maintenance of these technical requirements lie solely within the System User’s sphere of responsibility.
3.4 The System User shall protect the user and access authorizations and identification and authentication safeguards assigned to System User and/or its Users from being accessed by unauthorized third parties and shall not transfer this information to unauthorized users. As soon as the System User has an indication that the use and access authorizations were unlawfully attained by a third party or could be misused, the System User is obligated to immediately inform Provider of this for purposes of mitigating the damage.
3.5 In addition, the System User shall obtain the required consent of the respective affected party if, within the context of using the Contract Software, the System User collects, processes or uses personal data, and no statutorily-based elements granting permission impinges upon this use of personal data. The System User shall also otherwise observe all other statutory requirements and the requirements of data protection law.
3.6 The System User shall always pay the remuneration by the due date.
3.7 The System User shall in no way use or allow the Contract Software to be used in an abusive manner, and in particular for transmitting content that contains unlawful subject matter. The System User shall also refrain from every unauthorized attempt, or attempting by means of non-authorized third parties to retrieve information or data or interfere or allow interference in programs that are operated by the Provider or encroach upon data networks of the Provider without authorization.
3.8 The application is programed for online operation and will be set up individually for the System User. Therefore the application must be tested prior to use with current browsers and plug-ins and evaluated for potential malfunctions. The System User commits to carrying out necessary tests and to informing the Provider promptly of the occurrence of malfunctions.
3.9 In describing, isolating, detecting and providing notice of malfunctions, the System User must observe the instructions furnished by the Provider. If necessary, the System User must use the Provider’s checklists.
3.10 The System User must use best efforts to precisely state the nature of malfunction reports and questions and draw on competent employees for this purpose.
3.11 The System User shall promptly inform the Provider in writing of errors in the services that are the subject matter of the contract and in so doing state how and under which circumstances the error or the defect occurs and shall actively support the Provider in troubleshooting. If it is determined, subsequent to analysis of the System User’s defect report by the Provider that the defect did not occur within the Provider’s sphere of responsibility, the Provider may invoice the System User for the costs of analyzing the error report at the respective, applicable prices. This does not apply if the System User could not recognize—even when applying the care required—that the malfunction did not occur within the Provider’s sphere of responsibility.
3.12 In the course of using the Contract Software and the services that are the subject matter of the Contract, the System User shall comply with all applicable laws and other legal regulations of the Federal Republic of Germany. In particular the System User is prohibited from uploading data or content that violate legal regulations and that infringe on third party industrial property rights and copyrights or other third party rights. The System User shall be responsible for the data and content made available by the System User. The Provider shall not evaluate the content either for its accuracy nor for being free of viruses nor for technical processability.
3.13 The System User shall backup the data transmitted to the Provider regularly and commensurate with the risk, however at least on a daily basis and create backup copies so as to ensure reconstruction of data and information in the case of their loss.
3.14 The System User shall check the data and information for viruses prior to sending it and employ virus protection programs conforming to the state of the art. Finally, the System User shall regularly backup its data sets located in the system by means of downloads up until the date the Contract terminates, since it cannot be precluded that it will no longer be possible for the System User to access these data sets subsequent to termination of the Contract.
3.15 If a third party asserts a legal violation by virtue of the data or content made available by the System User, the Provider is authorized to block the content either entirely or preliminarily if legitimate doubt exists, by reason of objective indicators, related to the legality of the data and/or content. In this case the Provider shall request that the System User discontinue the legal violation or demonstrate the legality of the content within a reasonable notice period. If the System User does not comply with this request, the Provider is entitled, without prejudice to other rights and claims, to terminate the Contract for cause without observing a notice period. Expenses accruing for the Provider on account of the measures mentioned can be invoiced by the Provider for the account of the System User at the Provider’s respective current prices. If the System User is responsible for the legal violation, the System User shall compensate the Provider for the damages arising therefrom and to this extent indemnify the Provider for any claims of third parties. Further rights remain reserved.
3.16 Moreover, the System User is obligated to immediately and without charge carry out all relevant cooperative participation, in particular if the Provider makes request for this and the measures required do not exceed a reasonable expense.
3.17 In the case of a serious or other violation of the System User’s obligations arising from this Contract, as well as repeated violations, the Provider is entitled at the Provider’s option to discontinue the use of the contractual services by the System User entirely, in part or temporarily, or to terminate the contractual relationship for good cause without observing a notice period. Expenses accruing for the Provider on account of the measures mentioned can be invoiced by the Provider for the account of the System User at the Provider’s respective current prices. If the System User is responsible for the legal violation, the System User is obligated towards the Provider to pay compensation for the damages arising therefrom.
4.1 The remuneration for using the Contract Software consists of a monthly use fee depending on the intensity of use (edition / number of Users). Some editions contain an additional—as presented under cxomni.net—set up fee for standardized company-based adjustments and training. To the extent that the Provider renders additional services not expressly mentioned in this Contract, the prices applicable for this are the Provider’s respective current prices or offers as are separately agreed. The price lists may be reviewed at the Provider’s premises at all times.
4.2 The System User must pay for use of the Contract Software under the access data provided to the System User even if this occurs by way of unauthorized third parties. A requirement for the Provider’s claim for remuneration is evidence that the System User is responsible for the third party’s use. The obligation to pay remuneration exists even if the System User had a reasonable suspicion that third parties had become aware of the access data and the System User did not immediately inform the Provider of this. However, the System User is not obligated to pay remuneration for use by unauthorized parties if the act of use occurred after the System User informed the Provider about the third party becoming aware of the access data.
4.3 The ongoing remuneration payments shall be due and payable annually in advance on the initial registration date. Other services shall become due and payable after rendering the service and receipt of the invoice by the System User.
4.4 All remuneration and prices mentioned are understood to be in addition to the respective valid statutory value added tax. This tax shall be invoiced in addition to the remuneration.
4.5 To compensate for increases in personnel and other costs, the Provider has the right to modify the prices and remuneration for the contractual services. However, such a price modification is permissible no sooner than twelve months subsequent to conclusion of the Contract and is permitted only once per year. The Provider shall give the System User written notice of the modification not later than six weeks prior to the change becoming effective. For the case that the System User does not accept the price increase, the System User is entitled to terminate the Contract in its entirety with a notice period of one month at the end of a calendar month if the price increase amounts to more than 10% of the prior price. In the case of a termination, the prior prices shall apply until the termination becomes effective.
4.6 The System User may only offset or assert a right of retention for non-appealable or undisputed claims. The System User can only assign its claim arising from this Contract to a third party with the written consent of the Provider.
5.1 During a period of delayed payment on the part of the System User in an amount that is material, the Provider is entitled to block access to the Contract Software. In this case the System User remains obligated to pay the monthly remuneration.
5.2 If the System User is in default:
5.2.1 for two consecutive months with payment of the remuneration or a material part of the remuneration; or,
5.2.2 is in default with payment of the consideration in a sum that amounts to the consideration for two months within a time period that extends over more than two months, the Provider is entitled to terminate the Contract without observing a notice period and to demand a flat compensatory damage amount that is immediately due and payable in one lump sum in an amount of one quarter of the remaining monthly prices up to the expiration of the regular Contract term.
5.3 The damage amount must be increased or decreased if the Provider demonstrates a higher amount or the System User demonstrates a lower damage amount.
5.4 The Provider retains the right to assert additional claims for default in payment.
5.5 If the Provider is in default with making operational software available, liability is determined according to item 7. The System User is only then entitled to withdraw from the Contract if the Provider does not comply with a reasonable grace period set by the System User, which grace period must be at least three weeks.
6. Modifications in services provided
6.1 The Provider can modify the services for the System User at any time in a reasonable manner. A modification is then in particular reasonable if it becomes necessary for a good cause reason such as for example, through an interruption of services being rendered by sub-contractors, and the features of the services as described at cxomni.net continue to be materially fulfilled. The Provider shall inform the System User in writing or via e-mail concerning the modification at least six weeks prior to its becoming effective.
6.2 Irrespective of this the Provider is at all times entitled to modify or supplement its offering of services or parts thereof. The Provider shall give the System User written notice or notice via e-mail of the modification or supplementation not later than six weeks prior to the change becoming effective. The System User can object to the modifications in writing or via e-mail, observing a notice period of two weeks from receipt of the notice of a modification. If the System User does not object, the modifications and supplementations shall become an integral part of the Contract. The Provider shall call attention to the consequences of the System User’s response in the notice of a modification. If the System User objects to the modification within the notice period, the Provider may terminate the Contract for convenience at the next possible date.
The Provider is conclusively liable, irrespective of the legal grounds as follows:
7.1 For defects in the services that are the subject matter of the Contract, the Provider shall be liable according to this item 7 provided that disruptions are not based on limitations in availability.
7.2 If the services to be rendered under this Contract by the Provider are defective, the Provider shall, according to the Provider’s option, remedy the defect or render the services again within a reasonable time period and subsequent to receiving a notice of the defect. Where third party software is used that the Provider has licensed for use by the System User, the liability for defects consists of obtaining and installing generally available upgrades, updates or service packs.
7.3 If the rendering of services also fails for reasons for which the Provider is responsible within a reasonable time period set by the System User, the System User can reduce the agreed remuneration by a reasonable amount. This right to reduce the remuneration is limited in amount to the monthly remuneration accruing for the defective part of the services.
7.4 If the reduction under the above item 7.3 reaches the maximum amount listed in item 7.3 in two consecutive months or in two months of a quarter, the System User can terminate the Contract without observing a notice period.
7.5 The System User shall promptly inform the Provider in writing of the occurrence of defects.
7.6 The System User shall support the Provider without charge in removing the defects and in particular, shall make available to the Provider all necessary documentation, data, etc. that the Provider requires for analyzing and remedying the defects.
7.7 The Provider is obligated to promptly remedy defects in the software that is the subject matter of the Contract. In the course of remedying the defect, the Provider shall ensure that an interruption of the connection between the Provider and the System User does not occur to the extent that this is technically possible. No-fault liability according to § 536a, 1st Alt. German Civil Code [Bürgerliches Gesetzbuch, “BGB”] is excluded. The legal guarantee provisions of the law of service contracts (§§ 611 et seq. BGB) shall apply to the remaining obligations of the Provider according to §§ 1 through 2 of this Contract.
7.8 The Provider is not liable for the functional capacity of the lines to its server, for power failures and failures of servers that are not within the Provider’s sphere of influence.
7.9 The Provider is not liable for the functional capacity and quality of the content that the System User or its Users create themselves by means of the application. Before the System User makes content available online, the System User must ensure the functional capacity and quality of the content by means of adequate testing. No liability shall arise for the Provider or the Provider’s vicarious agents for defects of any kind in the content produced while using the application (e.g. PDF exports) if the defects are not based on an error in the application itself. The System User shall indemnify the Provider and its vicarious agents for liability for defective content in relation to third parties, in particular the System User’s customers.
7.10 The Provider is not responsible for content (e.g. texts, images, layouts, illustrations) that the System User makes available or for content that result from third party use, in particular Users of the System User company.
7.11 For slight negligence, the Provider shall only be liable for violating material contract obligations as well as for personal injuries and according to the Product Liability Act. Otherwise, the Provider’s pre-contractual, contractual and non-contractual liability is restricted to intentional acts and gross negligence, in which case this limitation of liability also applies in the case of culpability of the Provider’s vicarious agent.
7.12 For the fault of other vicarious agents, the liability is limited to five times the monthly consideration as well as limited to those damages the occurrence of which must typically be expected within the scope of a Software-as-a-Service.
7.13 Liability for data loss is limited to the typical expenses of restoring the data that would occur where backup copies are routinely made commensurate with the risk.
7.14 The Provider shall be liable without limitation for personal injury for which the Provider is responsible. For property damage for which the Provider is responsible, the Provider shall reimburse for the expense of restoring or new acquisition of the property up to an amount of no greater than the contract value. For damage to data storage materials, the obligation to provide reimbursement does not include the expense for replacing lost data.
7.15 The limitation of liability under 7.14 shall not apply for cases of intentional acts, gross negligence or the violation of material contract obligations. However, for slight negligence in violating material contract obligations, the obligation to reimburse is limited to the damages that are typical and foreseeable for the Contract.
7.16 Further and different claims and rights of the System User than those expressly mentioned in this item 7 due to defects in the contractual services do not exist insofar as the Provider is not additionally liable on the basis of mandatory statutory provisions.
8. Third party industrial property rights
8.1 Insofar as the System User is held liable by a court for infringing upon third party industrial property rights and copyrights due to using the services rendered by the Provider in accordance with the Contract, the Provider shall indemnify the System User for these claims under the following preconditions:
8.1.1 The System User shall immediately inform the Provider in writing as soon as the System User becomes aware of the claims being asserted, and
8.1.2 The System User shall grant to the Provider control over the defensive measures and settlement negotiations. In particular the System User shall not provide any judicial or non-judicial acknowledgment concerning the third party claims, and
8.1.3 The System User shall, in a reasonable manner, support the Provider in defending against or resolving the claims.
8.2 The Provider is only then obligated to compensate the System User for damages due to infringement of third party industrial property rights beyond those under the above-mentioned item 8.1 if the Provider is at fault for the infringement.
8.3 The System User’s rights according to this item 8 do not exist to the extent that the infringement results from the fact that the System User:
8.3.1 Carried out a modification of the contractual services that were not approved in writing or in another manner by the Provider within the scope of this Contract or,
8.3.2 Uses the contractual services in a manner other than for the purposes of this Contract, or
8.3.3 Combines the contractual services with hard or software that does not conform to the requirements set out in the description “System Requirements”.
8.4 The parties to the Contract acknowledge that parts of the Contract Software generate digital content. The Provider does not assume any liability for the production or use of this content being free from violations of the law and in particular infringements of copyright. No content may be generated that infringes upon the rights of third parties, in particular copyrights, trademark rights, ancillary copyrights or rights to distinctive signs. No content that violates the law or public policy may be generated with the application. In particular this includes content within the meaning of §§ 130, 130 a and 131 of the German Criminal Code [Strafgesetzbuch, “StGB”] that serves to incite hatred and violence, instruct others in the commission of crimes or glorifies or trivializes violence, is sexually offensive or pornographic within the meaning of § 184 StGB, and that is likely to seriously endanger children or adolescents in their morals or compromise their wellbeing. The Provider is not obligated to monitor the generation of content by means of the application with respect to possible copyright infringements or other violations of rights. The System User shall expressly indemnify the Provider and its vicarious agents from all possible claims, in particular third party copyright claims that are based on a use of the Contract Software contrary to law, or that result from legal disputes under data protection or copyright or other laws associated with use of the application. If the System User recognizes or should recognize that there is a danger of such violation, the System User is obligated to immediately intervene so as to prevent the legal violation.
9. Data protection, confidentiality and data security
9.1 Both contracting parties shall comply with the respective applicable provisions (in particular those effective in Germany) under data protection law and shall obligate the employees engaged in connection with the Contract to maintain data secrecy to the extent that these employees are not already generally obligated in this regard.
9.2 Furthermore, both contracting parties shall comply with the provisions that are applicable for the contracted data processing and for the computer center and shall undertake the required technical and organizational measures for protecting personal data within the meaning of § 9 of the Federal Data Protection Act [Bundesdatenschutzgestz, “BDSG”].
9.3 If the System User itself, or by way of the Provider, processes or uses personal data, the System User is responsible for the Systems User’s authorization to do this according to applicable legal provisions, in particular data protection provisions, and shall indemnify the Provider for all third party claims in the case of a violation.
9.4 It is hereby clarified that the System User, both generally in the contract relationship and also within the meaning of data protection law, remains the “owner of the data” (§ 11 BDSG). The System User is solely entitled, with respect to the power of disposal and ownership, to all of the system user-specific data (data input/output and processed/stored data). The Provider shall not undertake any control of the legal permissibility of collecting, processing and using the data stored for the System User; this responsibility is exclusively assumed by the System User. The Provider is only authorized to process and/or use the System User-specific data exclusively according to the System User’s instructions (e.g. for complying with obligations to delete and block) and within the scope of this Contract; in particular the Provider is prohibited from making the System User-specific data accessible to third parties in any manner without the prior written consent of the System User. This also applies if and to the extent that a modification or supplementation of the System User-specific data occurs. However, the Provider is entitled to process and use the data of the System User within the framework of what is permissible under data protection law over the course of this Contract’s legal validity.
9.5 As a general rule the System User is not entitled to demand access to the premises with the Contract Software and other system components. Remaining unaffected hereby are rights of access of the System User’s data protection officer, subsequent to written notification, for the purpose of inspecting compliance with requirements according to the Appendix of § 9 BDSG, as well as any other of the Provider’s handling of personal data according to statutes and contract within the framework of operating the Contract Software under this Contract.
9.6 The contracting parties shall only use for purposes of implementing this Contract all information and data that they receive for performing this Contract, which has been designated as confidential; and, for as long as and to the extent that same has not become generally known, shall treat such information and data as confidential. The contracting parties shall impose a corresponding obligation upon their employees affected by this Contract. These obligations also survive subsequent to the termination of this Contract for an additional two years calculated from the date that the Contract terminates.
9.7 The Provider can award sub-contracts but must impose a corresponding obligation on the sub-contractors.
9.8 The Provider guarantees the security of the data set up by the System User under data protection law and shall comply with statutory regulations on data protection—in particular the Teleservice Data Protection Act and the Federal Data Protection Act.
9.9 With this, the Provider shall inform the System User that Provider is collecting, processing and using personal data to the extent that this is necessary for implementing the Software-as-a-Service (SaaS) Contract. The System User is in agreement with its data being stored, transmitted, deleted and blocked by the Provider to the extent that this is necessary, considering the legitimate interests of the System User and the purpose of this Contract.
10. Term, termination
10.1 The term of this Contract shall be for 24 months and commences on the date of the Provider’s starting operations with respect to installing the application. This is complete when the application is functional and is available to the System User for operational use irrespective of when the System User administratively installs the application, irrespective of smaller design-based modifications and irrespective of the scheduled date for commencement for the company’s internal use. Making available the agreed Software-as-a-Service (SaaS) services shall take place on this date. If the Contract is not terminated by the due date for termination, the Contract is extended by an additional 12 months respectively, commencing with the date that the prior contract term expires.
10.2 The contractual relationship can be terminated by both contracting parties with a notice period of 3 months at the end of the Contract term, however, this is effective only after an initial 24-month minimum term.
10.3 The right to termination for good cause remains unaffected hereby. A good cause reason for termination exists in particular if:
10.3.1 A contracting party violates material obligations or repeatedly violates non-material obligations arising from the Contract, and also does not remedy the violation after request made by the other contracting party within a reasonable notice period, or
10.3.2 A contracting party’s adherence to the Contract is not reasonable as a consequence of force majeure, or
10.3.3 Insolvency proceedings have been opened with regard to the assets of the other contracting party or opening of bankruptcy proceedings is directly pending.
10.4 All terminations under this Contract must be in writing to be effective.
10.5 Upon termination of this contractual relationship, irrespective of the reason, the parties are obligated to properly handle the contractual relationship. In particular the Provider shall for this purpose:
10.5.1 Hand over to the System User or a third party designated by the latter at the Provider’s expense, the System User’s data stored within the framework of the Contract, and databases potentially created within the scope of the Contract no later than four weeks after the Contract’s termination by means of both data remote transmission and also on data carriers in a form selected by the Provider, and
10.5.2 Subsequent to confirmation of successful transfer, shall immediately delete the System User’s data and all copies made thereof.
11. Force majeure
11.1 The Provider is exempt from the duty to perform arising from this Contract if and to the extent that the non-performance of the services is attributable to the occurrence of force majeure circumstances subsequent to concluding the Contract.
11.2 Deemed to be force majeure circumstances are for example, wars, strikes, unrest, expropriation, storms, floods and other natural catastrophes and other circumstances for which the Provider is not responsible (in particular water leaks, power failures and disruption or destruction of data transmission lines).
11.3 Each contracting party must promptly inform the other party in writing concerning the occurrence of a force majeure event and likewise inform the other contracting party as soon as the force majeure event no longer exists.
12. Closing provisions
12.1 All agreements that constitute a modification, supplementation or specification of these contractual terms, as well as assurances, guarantees and stipulations must be in written form. Guarantees only then qualify as guarantees within the meaning of the law if they are expressly designated as guarantees. If declarations, supplementations, specifications, assurances and/or guarantees are stated by representatives or agents of the Provider, these are only then binding if the Provider issues a written consent for this purpose.
12.2 The contracting parties may only transfer the rights and duties arising from this Contract with the advanced written consent of the other party.
12.3 The System User’s general terms and conditions shall not apply.
12.4 With respect to all of the legal interactions resulting from this contractual relationship, the contracting parties agree on the application of the law of the Federal Republic of Germany, excluding the UN Purchasing Convention.
12.5 The exclusive venue for all legal disputes arising from this Contract is at the location of the Provider’s company seat. However, the Provider is also entitled to file suit at the location of the System User’s company seat.
12.6 Should a provision of this Contract be or become invalid, the validity of the Contract as to the remainder shall not be affected thereby. The contracting parties are obligated in good faith to make all reasonable efforts to replace the invalid provision with a permissible provision that is equivalent in terms of economic outcome provided that this does not thereby bring about a material modification of the contract terms.
Status date: 1/15/2018