1.1 The Provider shall provide the contractual services, in particular access to the software, in its area of availability (from the data center interface to the Internet). The scope of services, the quality, the intended use and the conditions of use of the contractual services are set out in the respective service description, supplemented by the operating instructions for the software.
1.2 Additional services, such as the development of customized solutions or necessary adaptations, require a separate contract.
1.3 The Provider may provide updated versions of the Software.
The Provider shall inform the Customer of updated versions and corresponding instructions for use by electronic means and make these available accordingly.
2. scope of use
2.1 The contractual services may only be used by the customer and only for the purposes agreed in the contract. During the term of the contract, the customer may access the contractual services by means of telecommunications (via the Internet) and use the functionalities associated with the software in accordance with the contract by means of a browser or another suitable application (e.g. “app”). The customer shall not receive any further rights, in particular to the software or any infrastructure services provided in the respective data center. Any further use requires the prior written consent of the provider.
2.2 In particular, the customer may not use the software beyond the agreed scope of use or have it used by third parties or make it accessible to third parties. In particular, the customer is not permitted to reproduce, sell or temporarily transfer, rent or lend software or parts thereof.
2.3 The Provider is entitled to take appropriate technical measures to protect against non-contractual use. The contractual use of the services may not be more than insignificantly impaired as a result.
2.4 In the event that U the scope of use is exceeded by a user in breach of contract or in the event of unauthorized transfer of use, the customer must provide the provider immediately upon request with all information available to him for asserting claims due to the use in breach of contract, in particular the name and address of the user.
2.5 The provider may revoke the customer’s access authorization and/or terminate the contract if the customer significantly exceeds the permitted use or violates regulations to protect against unauthorized use. In connection with this, the provider may interrupt or block access to the contractual services. The provider must always set the customer a reasonable grace period to remedy the situation. The sole revocation of access authorization shall not be deemed to be a termination of the contract. The provider can only maintain the revocation of access authorization without termination for a reasonable period of time, up to a maximum of 3 months.
2.6 The provider’s claim to remuneration for use beyond the agreed use remains unaffected.
2.7 The customer is entitled to the reinstatement of access authorization and access options after he has proven that he has stopped the use contrary to the contract and prevented future use contrary to the contract.
3. availability, performance deficiencies
3.1 The availability of the services provided is set out in the service description.
3.2 In the event of only an insignificant reduction in the suitability of the services for contractual use, the customer shall have no claims for defects. The strict liability of the provider for defects that already existed at the time the contract was concluded is excluded.
3.3 Section 578b BGB remains unaffected.
4. data protection
4.1 Insofar as the Provider has access to personal data of the Customer or from the Customer’s area, it shall act exclusively as a processor and process and use this data only for the execution of the contract. The provider shall observe the customer’s instructions for handling this data. The customer shall bear any disadvantageous consequences of such instructions for the execution of the contract. The customer shall agree with the provider the details for the provider’s handling of the customer’s data in accordance with data protection requirements.
4.2 The customer remains the controller both generally in the contractual relationship and in terms of data protection law. If the customer processes personal data in connection with the contract (including collection and use), it warrants that it is authorized to do so in accordance with the applicable provisions, in particular those of data protection law, and shall indemnify the provider against third-party claims in the event of a breach.
4.3 The following shall apply to the relationship between the Provider and the Customer: The Customer shall be responsible for the processing (including collection and use) of personal data vis-à-vis the data subject, unless the Provider is responsible for any claims of the data subject due to a breach of duty attributable to it. The customer shall responsibly examine, process and respond to any inquiries, requests and claims of the data subject. This also applies if the data subject makes a claim against the provider. The provider shall support the customer within the scope of its pﬂects.
4.4 The provider guarantees that the customer’s data will be stored exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union or in another state party to the Agreement on the European Economic Area, unless otherwise agreed.
5. pﬂects of the customer
5.1 The customer must protect the access authorizations assigned to him or the users as well as identiﬁcation and authentication information from access by third parties and not pass them on to unauthorized persons.
5.2 The customer is obliged to indemnify the provider against all claims by third parties due to legal infringements that are based on an unlawful use of the subject matter of the service by the customer or are carried out with the customer’s approval. If the customer recognizes or must recognize that such a violation is imminent, there is an obligation to inform the provider immediately.
5.3 The Customer must use the options provided by the Provider to back up its data in its original area of responsibility.
6. use contrary to contract, compensation
For each case in which a contractual service is used without authorization in the customer’s area of responsibility, the customer shall pay compensation in the amount of the remuneration that would have been incurred for the contractual use within the framework of the minimum contractual term applicable to this service. The customer reserves the right to prove that the customer is not responsible for the unauthorized use or that no or significantly less damage has occurred. The provider remains entitled to claim further damages.
7. fault management
7.1 The Provider shall receive fault reports from the Customer, assign them to the agreed fault categories (Section 7.3) and carry out the agreed measures to analyze and rectify faults on the basis of this assignment.
7.2 The Provider shall accept proper fault reports from the Customer during its normal business hours and provide each with an identifier. At the customer’s request, the provider shall confirm receipt of a fault report and provide the assigned identifier.
7.3 Unless otherwise agreed, the Provider shall assign fault reports received to one of the following categories after initial inspection:
- Serious fault
The disruption is due to a fault in the contractual services which makes the use of the contractual services, in particular the software, impossible or only possible with severe restrictions. The customer cannot reasonably avoid this problem and therefore cannot complete tasks that cannot be postponed.
- Other malfunction
The disruption is based on a fault in the contractual services which restricts the use of the contractual services, in particular the software, by the customer to a more than insignificant extent without there being a serious disruption.
- Other message
Fault reports that do not fall into the categories a) and b) are assigned to other notifications. Other notifications will only be handled by the provider in accordance with the agreements made for this purpose.
7.4 In the event of reports of serious faults and other malfunctions, the Provider shall immediately initiate appropriate measures based on the circumstances communicated by the Customer in order to first localize the cause of the fault.
If, after initial analysis, the reported fault does not prove to be a fault in the contractual services, in particular the software provided, the provider shall inform the customer of this immediately.
Otherwise, the provider shall initiate appropriate measures for further analysis and rectification of the reported malfunction or – in the case of third-party software – forward the malfunction report together with its analysis results to the distributor or manufacturer of the third-party software with a request for rectification.
The Provider shall immediately provide the Customer with measures available to it to circumvent or rectify an error in the contractual services, in particular the software provided, such as instructions for action or corrections to the software provided. The customer shall immediately adopt such measures to circumvent or rectify disruptions and immediately report any remaining disruptions to the provider.
8. contact point (hotline)
8.1 Contractual services
The provider shall set up a contact point for the customer (hotline). This department processes the customer’s inquiries in connection with the technical requirements and conditions of use of the software provided as well as individual functional aspects.
8.2 Acceptance and processing of inquiries
A prerequisite for the acceptance and processing of inquiries is that the customer designates to the provider appropriately qualified professional and technical personnel who are responsible internally at the customer for processing inquiries from users of the software provided. The customer is obliged to submit inquiries to the hotline only via the personnel designated to the provider and to use the forms provided by the provider. The hotline accepts such inquiries by e-mail, fax and telephone during the provider’s normal business hours.
The hotline will process proper inquiries in the normal course of business and answer them as far as possible. The hotline may refer to documentation and other training resources available to the customer for the software provided. If it is not possible for the hotline to provide an answer or not in a timely manner, the provider shall – if this has been expressly agreed – forward the inquiry for processing, in particular inquiries about software not produced by the provider.
Further services of the hotline, such as other response times and deadlines as well as on-call services or on-site visits by the provider to the customer must be expressly agreed in advance.
9. contract term and termination of contract
9.1 The contractually agreed services shall initially be provided from the date specified in the contract for the duration of the term agreed in the contract. During this minimum term, premature ordinary termination is excluded on both sides.
9.2 The contract can be terminated with a notice period of three months, at the earliest at the end of the minimum term. If this is not done, the contract is extended by a further year in each case, unless it is terminated with three months’ notice to the end of the respective extension period.
9.3 The right of each contractual partner to extraordinary termination for good cause remains unaffected.
9.4 Any notice of termination must be in writing to be effective. Section 8.4 AV Bitkom applies.
9.5 The customer shall back up his data on his own responsibility in good time before termination of the contract (e.g. by downloading). Upon request, the provider will support the customer in this process; Section 4.4 AV Bitkom applies. For data protection reasons alone, the customer will generally no longer be able to access these databases after termination of the contract.
10 Validity of the AV Bitkom
In addition, the General Terms and Conditions of Contract of Bitkom (AV Bitkom) apply.