Terms & Conditions
Terms and Conditions of Rowisoft GmbH for the Use of Software via the Internet (Software as a Service)
1. Services
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 nature, the intended use and the conditions of use of the contractual services are set forth in the respective service description and in the operating instructions for the software.
1.2 Additional services, such as the development of customized solutions or necessary adaptations, shall require a separate written contract.
1.3 The Provider may provide updated versions of the Software. The Provider shall inform the Customer electronically about updated versions and corresponding usage instructions and make them 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”). Any rights going beyond this, in particular to the software or the the infrastructure services provided in the respective data center, if any, shall not be granted to the Customer. 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 shall not be permitted to reproduce, sell or make available for a limited period of time, rent or lend software or parts thereof.
2.3 The Provider shall be entitled to take appropriate technical measures to protect against use not in accordance with the contract. The contractual use of the services may not be more than insignificantly impaired as a result.
2.4 In the event that a user exceeds the scope of use in violation of the contract or in the event of an unauthorized transfer of use, the customer shall, upon request, immediately provide the provider with all information available to him for asserting claims due to the use in violation of the 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 use permitted to him or violates regulations for protection against unauthorized use. In connection with this, the provider can interrupt or block access to the contractual services. The Provider shall generally set the Customer a reasonable grace period for remedial action beforehand. The sole revocation of the access authorization shall not be deemed to be a termination of the contract at the same time. The Provider may only maintain the revocation of the access authorization without termination for a reasonable period of time, not exceeding 3 months.
2.6 The Provider’s claim to remuneration for use exceeding the agreed use shall remain unaffected.
2.7 The Customer shall have a claim for the re-granting of the access authorization and the access possibility after he has proven that he has ceased the use contrary to the agreement and has prevented a future use contrary to the agreement.
3. Availability, Deficiencies in Performance
3.1 The availability of the services provided shall be determined by the service description.
3.2 In the event of only an insignificant reduction in the suitability of the services for use in accordance with the contract, the Customer shall have no claims based on defects. The strict liability of the Provider due to defects that were already present at the time of the conclusion of the contract is excluded.
3.3 If a cause for which the Provider is not responsible, including strike or lockout, impairs compliance with deadlines (“disruption”), the deadlines shall be postponed by the duration of the disruption, if necessary including a reasonable restart phase. A contractual partner shall immediately inform the other contractual partner of the cause of a disruption occurring in its area and the duration of the postponement.
3.4 If the effort increases due to a disruption, the Provider may also demand payment for the additional effort, unless the Customer is not responsible for the disruption and its cause lies outside its area of responsibility.
3.5 If the Customer is entitled to withdraw from the contract due to improper performance by the Provider and / or to claim damages in lieu of performance or claims such, the Customer shall, at the Provider’s request, declare in writing within a reasonably set period of time whether it asserts these rights or continues to desire the performance of the service. In the event of a withdrawal, the Customer shall reimburse the Provider for the value of previously existing possibilities of use; the same shall apply to deteriorations due to intended use. If the Provider is in default with the provision of the service, the Customer’s compensation for damages and expenses due to the default shall be limited to 0.5% of the price for the part of the contractual service that cannot be used due to the default for each full week of the default. The liability for delay shall be limited to a maximum of 5% of the remuneration for all contractual services affected by the delay; in the case of continuing obligations, in relation to the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon at the time of conclusion of the contract shall apply. This shall not apply if a delay is due to gross negligence or intent on the part of the Provider.
3.6 In the event of a delay in performance, the Customer shall only have a right of rescission within the scope of the statutory provisions if the Provider is responsible for the delay. If the Customer asserts a claim for damages or reimbursement of expenses in lieu of performance due to the delay, the Customer shall be entitled to demand 1% of the price for the part of the contractual performance that cannot be used due to the delay for each full week of the delay, but no more than a total of 10% of this price; in the case of continuing obligations, in relation to the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon conclusion of the contract shall apply.
3.7 Section 578b BGB shall remain unaffected.
4. Data Protection
4.1 Insofar as the Provider has access to personal data of the Customer or from the Customer’s area, the Provider shall act exclusively as a processor and shall process and use such data only for the performance of the contract. The Provider shall comply with the Customer’s instructions for handling such data. The Customer shall bear any adverse consequences of such instructions for the performance 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 the requirements of data protection law.
4.2 The Customer shall remain the responsible party both generally in the contractual relationship and in terms of data protection law. If the Customer processes personal data (including collection and use) in connection with the contract, the Customer warrants that it is entitled to do so in accordance with the applicable provisions, in particular the provisions 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: vis-à-vis the data subject, the Customer shall bear responsibility for the processing (including collection and use) of personal data, except to the extent that the Provider is responsible for any claims by the data subject due to a breach of duty attributable to it. The Customer shall responsibly examine, process and respond to any inquiries, applications and claims of the data subject. This shall also apply in the event of a claim against the Provider by the data subject. The provider will support the customer within the scope of his duties.
5. Duties of the Customer
5.1 The Customer shall protect the access authorizations and identification and authentication information assigned to him or to the Users from access by third parties and shall not disclose them to unauthorized persons.
5.2 The Customer is obligated to indemnify the Provider against all claims of third parties due to infringements of rights that are based on an unlawful use of the subject matter of the service by the Provider or are made with the Provider’s approval. If the customer recognizes or must recognize that such an infringement is imminent, the obligation exists to inform the provider immediately.
5.3 The Customer shall use the possibilities provided by the Provider to secure his data in his original area of responsibility.
6. Use Contrary to Contract, Compensation for Damages
For each case in which a contractual service is used without authorization in the Customer’s area of responsibility, the Customer shall pay damages in the amount of the remuneration that would have been incurred for the contractual use within the framework of the minimum contract period applicable to this service. The customer reserves the right to prove that the customer is not responsible for the unauthorized use or that there is no damage or significantly less damage. The Provider shall remain entitled to claim further damages.
7. Material Defects and Reimbursement of Expenses
7.1 The Provider warrants the contractual quality of the Services. There shall be no claims for material defects for an only insignificant deviation of the Provider’s services from the contractual quality. Claims for defects shall also not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment. The same shall apply in the event of software errors that cannot be reproduced or otherwise proven by the customer.
This shall also apply in the event of damage due to special external influences which are not assumed under the contract. Claims due to defects shall also not exist in the event of subsequent modification or repair by the customer or third parties, unless this does not make the analysis and elimination of a material defect more difficult.
7.2 The limitation period for material defect claims shall be one year from the statutory commencement of the limitation period. The statutory periods for recourse according to § 478 BGB shall remain unaffected. The same shall apply insofar as longer periods are prescribed by law in accordance with § 438 para. 1 no. 2 or § 634a para. 1 no. 2 BGB, in the event of an intentional or grossly negligent breach of duty by the Supplier, in the event of fraudulent concealment of a defect and in cases of injury to life, limb or health as well as for claims under the Product Liability Act. The processing of a notice of material defect by the customer by the provider only leads to the suspension of the statute of limitations, provided that the legal requirements for this are met. A new start of the limitation period does not occur. A supplementary performance (new delivery or rectification) can only have an influence on the limitation period of the defect triggering the supplementary performance.
7.3 Claims under a right of recourse in the case of contracts for digital products pursuant to Section 327u of the German Civil Code (BGB) shall remain unaffected by Sections 7.1 and 7.2. If a customer asserts a possible claim against the customer that may lead to a recourse claim, the customer shall immediately inform the provider of the asserted claim and the further information necessary and useful for its assessment. The Customer shall provide the Provider with the opportunity to satisfy the claim asserted by the Customer’s customer, unless this is unreasonable for the Customer. The Customer and the Provider shall coordinate and cooperate with the aim of satisfying a justified claim of the Customer’s customer as expensively and cost-effectively as possible.
7.4 The Provider may demand reimbursement of its expenses insofar as
a) he acts on the basis of a report without there being a defect, unless the Customer could not have recognized with reasonable effort that there was no defect, or
b) a reported defect cannot be reproduced or otherwise proven by the customer to be a defect, or
c) additional expenses are incurred due to the customer’s failure to properly fulfill its obligations.
8. Defects of Title
8.1 The Provider shall be liable for infringements of third party rights by its performance only to the extent that the performance is used in accordance with the contract and in particular in the contractually agreed, otherwise in the intended environment of use without modification. The Provider shall be liable for infringements of third party rights only within the European Union and the European Economic Area as well as at the place of contractual use of the performance. Clause 4.1 sentence 1 shall apply accordingly.
8.2 If a third party asserts against the Customer that a service of the Provider infringes its rights, the Customer shall notify the Provider without undue delay. The Provider and, if applicable, its upstream suppliers shall be entitled, but not obliged, to defend the asserted claims at their own expense to the extent permissible. The Customer shall not be entitled to acknowledge claims of third parties before it has given the Provider reasonable opportunity to defend the rights of third parties by other means.
8.3 If the rights of third parties are infringed by a service of the Provider, the Provider shall, at its own discretion and at its own expense
a) procure the right for the Customer to use the service or
b) make the service non-infringing or
c) take back the service with reimbursement of the remuneration paid for it by the customer (less reasonable compensation for use) if the provider cannot achieve any other remedy with reasonable effort. The interests of the customer shall be given due consideration in this respect.
8.4 Claims of the Customer due to defects of title shall become statute-barred in accordance with Section 7.2.
9. Fault Management
9.1 The Provider shall receive fault reports from the Customer, assign them to the agreed fault categories (Section 9.3) and, on the basis of this assignment, implement the agreed measures for analyzing and clearing faults.
9.2 The Provider shall accept proper fault reports from the Customer during its normal business hours and assign an identifier to each one. Upon the Customer’s request, the Provider shall confirm receipt of a fault report to the Customer and inform the Customer of the assigned identification.
9.3 Unless otherwise agreed, the Provider shall assign received fault reports to one of the following categories after initial review:
a) Serious fault
The malfunction is based on a defect in the contractual services that makes the use of the contractual services, in particular the software, impossible or allows it only with severe restrictions. The customer cannot reasonably circumvent this problem and therefore cannot complete tasks that cannot be postponed.
b) Other disruption
The malfunction is based on a defect in the contractual services that restricts the customer’s use of the contractual services, in particular the software, more than insignificantly, without constituting a serious malfunction.
c) Other messages Malfunction messages that do not fall into categories a) and b) shall be assigned to other messages. Other reports shall only be handled by the Provider in accordance with the agreements made for this purpose.
9.4 In the case of reports of serious faults and other faults, the Provider shall immediately initiate appropriate measures on the basis of the circumstances communicated by the Customer in order to first localize the cause of the fault. If, after initial analysis, the notified malfunction does not turn out to be a fault in the contractual services, in particular in the software provided, the Provider shall notify the Customer of this without delay. Otherwise, the Provider shall arrange for appropriate measures to be taken for further analysis and to rectify the notified fault or – in the case of third-party software – shall forward the fault report together with its analysis results to the distributor or manufacturer of the third-party software with a request for remedial action.
The Provider shall immediately provide the Customer with measures available to it for circumventing or rectifying a fault in the contractual services, in particular in the software provided, such as instructions for action or corrections to the software provided. The Customer shall immediately adopt such measures for the circumvention or correction of faults and shall immediately report any remaining faults to the Provider again upon their use.
10. Point of Contact (Hotline)
10.1 The Provider shall set up a point of contact for the Customer (hotline). This office shall process the Customer’s inquiries in connection with the technical requirements and conditions of use of the software provided as well as individual functional aspects.
10.2 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 assigned internally at the Customer to process inquiries of the users of the provided software. The Customer shall be obligated to address inquiries to the hotline only via such personnel designated to the Provider and to use forms provided by the Provider for this purpose.
The hotline shall accept such inquiries by e-mail during the Provider’s normal business hours. The Hotline will process and, to the extent possible, respond to proper inquiries in the normal course of business. The Hotline may refer to documentation available to the Customer and other educational resources for the Software provided for the purpose of responding. To the extent that it is not possible for the hotline to respond or to do so in a timely manner, the Provider shall – to the extent expressly agreed – forward the inquiry for processing, in particular inquiries regarding software not produced by the Provider. Further services of the hotline, such as other response times and deadlines as well as communication channels, on-call services or on-site assignments of the Provider at the Customer’s premises shall be expressly agreed upon in advance.
11. Term of Contract and Termination of Contract
11.1 The provision of the contractually agreed services shall initially take place from the date specified in the contract for the duration of the term agreed in the contract. During this minimum term, premature ordinary termination shall be excluded on both sides.
11.2 The contract may be terminated with three months’ notice, at the earliest at the end of the minimum term. If this is not done, the contract shall be extended by a further year in each case, unless it has been terminated with three months’ notice to the end of the respective extension period.
11.3 The right of each contractual partner to extraordinary termination for good cause shall remain unaffected.
11.4 Any notice of termination must be in writing to be effective. The Customer shall back up its data files (e.g. by download) on its own responsibility in good time before termination of the contract. Upon request, the Provider shall support the Customer in doing so. After termination of the Agreement, the Customer will generally no longer be able to access these databases for reasons of data protection.
12. Miscellaneous
12.1 The customer shall be responsible for observing any import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border deliveries or services, the customer shall bear any customs duties, fees and other charges. The customer shall handle legal or official procedures in connection with cross-border deliveries or services on its own responsibility, unless otherwise expressly agreed.
12.2 German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
12.3 The Provider shall provide its services on the basis of its General Terms and Conditions (GTC). The Customer’s GTC shall not apply, even if the Provider has not expressly objected to them. Acceptance of the services by the Customer shall be deemed to be acceptance of the Provider’s GTC with waiver of the Customer’s GTC. Other terms and conditions shall only be binding if the Provider has acknowledged them in writing; the Provider’s GTC shall then apply in addition.
12.4 Amendments and supplements to this contract shall only be agreed in writing. If written form is agreed (e.g. for notices of termination, withdrawal), text form is not sufficient.
12.5 The place of jurisdiction vis-à-vis a merchant, a legal entity under public law or a special fund under public law shall be the Provider’s registered office. The Provider may also sue the Customer at the Customer’s registered office.
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