Terms and Conditions for cloud services

 

 

These terms and conditions apply to Software as a Service (hereinafter referred to as “SaaS”) offered by Staufen.ValueStreamer GmbH, Blumenstr. 5, 73257 Köngen, (hereinafter referred to as “Staufen.ValueStreamer“) to the client.

 

1 Effectiveness, scope of application

1.1. The contract shall be deemed to be concluded if and when the client accepts Staufen.ValueStreamer’s offer without changes. The client's acceptance of the offer shall be deemed to be the client's acceptance of these terms and conditions for cloud services, as well.

1.2. Any deviating terms and conditions of the client will not become part of the contract unless expressly accepted by Staufen.ValueStreamer in writing. If Staufen.ValueStreamer performs without objection, this shall not be deemed to be an acceptance of the client’s terms and conditions by Staufen.ValueStreamer.

 

2 Provision of software

2.1. Staufen.ValueStreamer enables the client to use the SaaS via a web interface (hereinafter referred to as “Software”). The Software will not be delivered to the client.

2.2. Upon the client’s request, Staufen.ValueStreamer will provide initial training on the use of the Software to the client’s employees against separate remuneration.

 

3 Client’s obligations

3.1. The client is obliged to proactively procure information on the essential functions of the Software and to make sure that the Software corresponds to the client's wishes and requirements. In case of doubt, the client has the obligation to ask Staufen.ValueStreamer’s employees for advice before the contract is concluded.

3.2. The client is solely responsible for the fulfilment of the requirements for the use of the Software, including without limitation an adequate internet connection.

3.3. The client will be granted administrator status for the access to the Software, which enables the client to set up additional user accounts.

3.3.1. The client is obliged to treat the rights of use and access confidentially.

3.3.2. The client is obliged to inform Staufen.ValueStreamer without delay as soon as the client notices any unauthorized third-party use of the client’s rights of use and access.

3.3.3. In addition, the client will immediately change its rights of use and access (or have them changed by Staufen.ValueStreamer) if the client suspects that they might have been disclosed to any unauthorized third party.

3.4. The client affirms that they will not use the Software for any content the provision, publication and use of which violates applicable law, including without limitation criminal law, copyrights, trademark and marking rights and/or personal rights.

3.5. The client will inform every user set up by the client of the above obligations.

 

3.6. Client’s cooperation

3.6.1. The client is obliged to reasonably support Staufen.ValueStreamer in the execution of the agreed performance.

3.6.2. The parties will use their best efforts in order to stipulate the date and time the client is to fulfil their cooperation obligations in the preliminary stages of the contract negotiations. Should the parties be unable to do so, Staufen.ValueStreamer will reasonably in advance request the client to fulfil their required cooperation obligations. Should the client fail to fulfil their cooperation obligations despite the fact that date and time thereof were stipulated or despite the fact that Staufen.ValueStreamer requested the client to do so, Staufen.ValueStreamer will not be obliged to perform for as long as the client fails to fulfil their obligations. All dates and periods of time will be postponed and/or extended by a period corresponding to the period during which the client fails to fulfil their obligations plus a reasonable restart period. Any other rights Staufen.ValueStreamer may have based on the client’s delay will remain unaffected.

 

4 Subcontractors

4.1. Staufen.ValueStreamer is entitled to use subcontractors for the entire performance of services or for any part thereof.

4.2. Upon request, Staufen.ValueStreamer will inform the client of the subcontractors employed.

 

5 Granting of rights, third-party rights

5.1. The client is entitled to use the Software for the maximum number of users stipulated in the offer (hereinafter each of them referred to as "Named User"). The client stipulates the users that are granted access to the Software, which will make each of them a Named User. The client is entitled to change the allocation of an account to a Named User; however, such change is limited to one per calendar quarter.

5.2. Subject to the condition precedent of full payment, the client will receive the non-exclusive, non-transferable, revocable right, unrestricted as to scope and restricted to the term of contract as to time, to use the Software for their internal business purposes, including documentation, to the extent agreed upon in the contract.

5.3. The client is not entitled to allow any third party to use the Software, except for affiliated companies as stipulated in sections 15 et. seqq. of the German Companies Act, if expressly stated in the offer.

5.4. Staufen.ValueStreamer is entitled to verify the use of the Software once per year. Staufen.ValueStreamer's verification right includes, without limitation, the right to verify the number of users that Staufen.ValueStreamer grants the right to access the Software. The client is obliged to reasonably cooperate with Staufen.ValueStreamer in the execution of these verifications. The costs of this verification will be borne by the client if it shows that the Software is used in violation of the contract. Staufen.ValueStreamer may transfer the verification right to third parties.

 

 

5.5. Rights of third parties

5.5.1. Staufen.ValueStreamer guarantees that the Software is free from third-party rights and indemnifies the client from and against any third-party claims, including without limitation the costs for legal defense in accordance with the German Lawyers’ Compensation Act. This indemnification is subject to the condition precedent that

5.5.1.1. the client informs Staufen.ValueStreamer without delay and in writing of any claims,

5.5.1.2. the client refrains from any legal actions against this third party, including without limitation making out-of-court settlements without Staufen.ValueStreamer’s consent, acknowledging the claim or any similar actions with similar effects;

5.5.1.3. the client supports Staufen.ValueStreamer in the legal defense against the third party, as required, including without limitation by providing information; and

5.5.1.4. the client enables Staufen.ValueStreamer to determine and implement the defense strategy, including without limitation by selecting the attorneys at law and writing briefs. The client will make the statements and issue the powers of attorney, as required. Staufen.ValueStreamer will take the client’s legitimate interests into reasonable consideration during the legal defense.

5.5.2. In case there are any conflicting third-party rights, Staufen.ValueStreamer will, at its own expense, make reasonable efforts to ensure that the client is able continue to use the Software. These efforts may include without limitation:

5.5.2.1. making available to the client the rights required for future use; or

5.5.2.2. changing the Software in such a manner that third-party rights are no longer affected, without restricting its usability and without changing Staufen.ValueStreamer’s performance obligations.

Should Staufen.ValueStreamer not be able to do so, Staufen.ValueStreamer may terminate the contract with future effect. The client’s other rights shall remain unaffected.

 

6 Software availability

6.1. Staufen.ValueStreamer will guarantee 99.5% availability of the Software per month. Availability will be calculated based on downtimes in full minutes.

6.2. The availability requirement shall be deemed to be fulfilled if the Software is available within the data center in which Staufen.ValueStreamer operates the Software, reacts to queries and if the data center is available via internet.

6.3. Maintenance work that will cause an unavoidable downtime of the Software will not be taken into consideration for the calculation of the availability. Staufen.ValueStreamer will announce maintenance work reasonably in advance. Any downtimes caused by technical or other issues which are not within Staufen.ValueStreamer’s direct sphere of influence, will not be taken into consideration either.

 

7 Support

7.1. Staufen.ValueStreamer’s support to the client includes a help desk and bug-fixing. However, the following services (hereinafter referred to as “Additional Services”) shall not be part of Staufen.ValueStreamer’s contractual support services (the list is not exhaustive):

7.1.1. Support services outside the timeframes stipulated in section 9.1.

7.1.2. Support services that must be rendered at the client’s site.

7.1.3. Services regarding the interoperability of the Software with third-party software.

7.1.4. Services required due to improper handling and/or to violations of the client’s obligations, including without limitation non-compliance with the user documentation (e.g. handling error).

7.1.5. Services for hardware, operating systems, networks or for third-party software.

7.2. Staufen.ValueStreamer will render Additional Services against separate remuneration. Staufen.ValueStreamer is under no obligation to render Additional Services.

 

8 Bug-fixing

8.1. A bug means that the Software, if used in accordance with the contract, is missing any of the features described in the Software description. In case a bug occurs, Staufen.ValueStreamer will take one or more of the following actions:

8.1.1. Staufen.ValueStreamer will instruct the client via e-mail or telephone on how to remove the bug.

8.1.2. Staufen.ValueStreamer will make corrections to the Software and remove the bug.

8.1.3. Should Staufen.ValueStreamer be unable to fix the bug using reasonable efforts, Staufen.ValueStreamer may fulfil its contractual obligations by showing the client workarounds for the bug.

8.2. Should Staufen.ValueStreamer’s bug-fixing activities fail to remove the bug within a reasonable period of time more than twice (2x), the client is entitled to reduce the price or to terminate the contract for cause. However, there will be no right to terminate the contract for cause except for material defects or if Staufen.ValueStreamer failed to provide a workaround.

8.3. Staufen.ValueStreamer will, if and to the extent required for one of the bug-fixing actions, update the Software documentation and/or prepare a new Software documentation and provide the client with the updated/new documentation using usual delivery methods.

8.4. The client will report bugs, errors and incidents to Staufen.ValueStreamer stating the circumstances under which they occurred, their effects and possible causes. Moreover, the client will provide Staufen.ValueStreamer with any and all available information and documents required for error diagnosis and bug-fixing and comply with all instructions given by Staufen.ValueStreamer in this regard.

 

9 Help desk

9.1. Staufen.ValueStreamer will render contractual support services within its usual business hours (Monday through Friday from 9 a.m. to 12 p.m. and from 1 p.m. to 5 p.m. (CET/CEST) except for public holidays in Germany and/or Baden- Wurttemberg and except for the time from Christmas Eve (December 24) through New Year’s Eve (December 31)).

9.2. The help desk provides assistance in German and English.

9.3. The client will establish a point of contact for Staufen.ValueStreamer. The employee at this point of contact must have in-depth knowledge of the Software (administrator level) and must be able to pass on required information and to follow the instructions given by Staufen.ValueStreamer (hereinafter referred to as a “Key User”). The Key User must have sufficient authorizations to evaluate and decide on any issues arising in connection with the execution of the contract.

9.4. Only the Key Users appointed by the client for the system are entitled to contact the help desk. Any support services for a larger group of users or for other issues must be realized by the client independently.

9.5. Help desk response times

9.5.1. The following response times apply to the help desk:

 

 

 

 

 

9.5.2. Staufen.ValueStreamer and/or its service provider will regard any level 4 queries as wishes. The decision as to whether these wishes will be realized and included in the standard products will be made by Staufen.ValueStreamer in its own discretion.

9.5.3. The response times will not apply unless the bug is reported to the e-mail address provided by Staufen.ValueStreamer for this purpose. A report made via telephone to Staufen.ValueStreamer’s answering machine or made via e-mail to the mail addresses of individual employees of Staufen.ValueStreamer is not sufficient. In urgent cases, bug classes 1 and 2 should be reported to the support address and additionally by a telephone call to the account manager, in order to enable Staufen.ValueStreamer to react quickly.

 

10 Dates and periods of time

10.1. The dates and periods of time for Staufen.ValueStreamer’s performance are non-binding unless expressly agreed by the parties in writing.

10.2. These dates and periods of time will be postponed/extended automatically for the duration of the obstruction plus a reasonable restart period, if:

10.2.1. the client fails to fulfil their cooperation obligations in due time; or

10.2.2. there are other obstructions outside Staufen.ValueStreamer’s sphere of influence.

10.3. Without prejudice to the type of obstruction, Staufen.ValueStreamer will inform the client on the obstruction, the related circumstances and any issues resulting therefrom.

 

11 Liability

11.1. Staufen.ValueStreamer’s liability shall be unlimited for any damage caused by willful intent and gross negligence, any injury to life, limb or health, any violation of guarantee, the client's claims based on the Product Liability Act and any cases of liability provided for by mandatory law (e.g. Product Safety Act).

11.2. Staufen.ValueStreamer’s liability for slight negligence is limited to the violation of material contractual obligations, in which case liability is limited to the amount of the foreseeable typical damage to be usually expected in connection with contracts of this type. A material contractual obligation as stipulated above means an obligation that is material for the purpose of the contract or the fulfilment of which is essential for the due execution of the contract and on the fulfilment of which the client may rely. Foreseeable typical damage means any damage that can typically be expected in this case.

11.3. In the cases stipulated in section 11.2 above, the parties expect the foreseeable typical damage not to exceed the amount paid by the client for Staufen.ValueStreamer’s performance during the six (6) months immediately preceding the case of damage.

11.4. Staufen.ValueStreamer’s absolute liability for pre-existing defects is excluded, except for gross negligence or willful intent.

11.5. Any other liability of Staufen.ValueStreamer shall be excluded.

11.6. The cases stipulated in section 11.1 above shall be subject to the statutory statute of limitation. In addition, the client’s claims for damages will become statute-barred twelve (12) months after they became known, however, ten (10) years after they arise at the latest.

11.7. The above-stipulated limitations of liability apply mutatis mutandis to Staufen.ValueStreamer’s employees and bodies.

 

12 Confidentiality

12.1. Any information, knowledge, results, data and documents communicated or disclosed to the other party in connection with the execution of the contract (hereinafter referred to as "Confidential Information") are subject to confidentiality, irrespective of the type of information or of the manner of disclosure or delivery (including without limitation via unencrypted e-mail) and irrespective of whether they were expressly marked as confidential or secret.

12.2. This includes but is not limited to

12.2.1. know-how, property rights, source codes and other intellectual property or work results disclosed in connection with the contract and/or its execution;

12.2.2. other non-public information a party receives in connection with the contract and/or its execution.

12.3. The parties agree to treat the Confidential Information confidentially in the same way they would treat a business secret as defined in the German Act on the Protection of Business Secrets (GeschGehG) and not to use it except for the purposes of this contract and its execution and only to the extent stipulated in the contract. Confidential Information may be disclosed within the company on a need-to-know basis.

12.4. The parties are obliged to take any and all measures required to prevent the disclosure of Confidential Information to third parties.

12.5. The parties are obliged to ensure that their employees or other persons to whom Confidential Information is disclosed are subjected to the above-stipulated confidentiality obligations. In accordance with applicable statutory regulations, the parties must ensure that their employees remain subject to these obligations even after their employment is terminated.

12.6. The obligation to keep confidential and not to use the Confidential Information shall cease to exist if and to the extent such information:

 

12.6.1. was known to the other party before disclosure (evidence required); or

12.6.2. was in the public domain before disclosure or became part of the public domain after disclosure without any contribution or fault of the other party; or

12.6.3. is materially similar to information the respective party received from a third party authorized to disclose this information.

12.7. The confidentiality obligations shall survive the end of the term of contract, irrespective of the type of termination, for a period of three (3) years.

12.8. The parties’ affiliated companies as described in sections 15 et. seqq. of the German Companies Act are not deemed to be third parties for the purpose of this regulation.

 

13 Data protection

13.1. The personal data provided by the parties in connection with the contract, including without limitation contact data (such as telephone number, fax number, e-mail address, etc.), will be processed by the parties for the purposes of providing and executing the services. The parties are obliged to directly pass on to their employees any information they receive in accordance with Articles 13 and 14 of the GDPR.

13.2. To the extent the services provided by Staufen.ValueStreamer are processing activities as described in Article 28 of the GDPR, the parties will conclude a separate processing agreement.

 

14 Assignment

The assignment or transfer of contractual rights and/or obligations by the client is subject to Staufen.ValueStreamer’s prior written consent.

 

15 Term, termination

15.1. The contract shall come into force if and when the client is given access on administrator level. The term of contract will end after the period of time stipulated in the offer. Unless otherwise agreed upon in the offer, the term of contract will be renewed by one (1) year each unless the contract is terminated by either party upon three (3) months’ notice prior to the end of the term.

15.2. This shall not affect the right to terminate for good cause. A good cause shall be deemed to exist for Staufen.ValueStreamer if (including without limitation):

15.2.1. the client severely violates their contractual obligations, including without limitation, if the client makes unauthorized changes to the Software or has such changes made; or

15.2.2. the client is in delay of payment of the remuneration owed by the client by a period exceeding two (2) months or by a total amount corresponding to the remuneration owed for two (2) months.

A termination for cause must be preceded by a reasonable notice period unless this is unreasonable for the terminating party. In case of a bug, the termination for cause is additionally subject to the condition that the client requested Staufen.ValueStreamer two (2) times or more to fix the bug.

15.3. A termination must be made in writing and sent by registered mail with advice of delivery.

15.4. Upon termination of the contract, the client shall no longer be authorized to use the Software. If the client wishes to use their stored data for other purposes, the client must export them using the export function of the Software before the contract ends. After the end of the contract, the client may request a data export from Staufen.ValueStreamer in the given format against additional remuneration if and to the extent Staufen.ValueStreamer has not deleted the data yet. Staufen.ValueStreamer will delete the client’s data six (6) months after the end of contract at the latest.

 

16 Remuneration, terms of payment

16.1. For the services rendered by Staufen.ValueStreamer, the client will pay the fees stipulated in the offer.

16.2. The fees to be paid by the client for the use of the Software are due for payment in advance.

16.3. The remuneration will become payable upon issue of the invoice. The term of payment is 14 days after the invoice date.

16.4. All prices are stated net of applicable costs for postage, packaging, insurance, travel costs and expenses and applicable statutory VAT.

 

17 Export regulations

The Software may be subject to laws, standards, regulations, restrictions for export control purposes or to national security controls of the Federal Republic of Germany, of the European Union and/or of the United States of America. The client is obliged to comply with any restrictions resulting therefrom and to procure any required permits without being requested to do so. The client will indemnify Staufen.ValueStreamer from and against any consequences resulting from a violation of this regulation.

 

18 Final provisions

18.1. Agreements which are to change, amend or define this contract must be made in writing. This shall apply to any modifications to this requirement of written form, as well.

18.2. Should individual provisions of this contract be or become ineffective or invalid in whole or in part, this shall not affect the effectiveness of the remaining provisions.

18.3. The place of jurisdiction for any disputes arising out of this contract shall be Stuttgart, Germany.

The laws of the Federal Republic of Germany shall apply. The UN Sales Convention of April 11, 1980 (Vienna Sales Convention – CISG) shall be excluded.