General Terms and Conditions for the Provision of Software as a Service Services

General Terms and Conditions for the Provision of Software as a Service Services by Bion Analytics Unternehmergesellschaft (haftungsbeschränkt).

Preamble

The Provider provides services in the field of data automation. Among other things, it provides business intelligence applications (hereinafter: “Software”) via the Internet, which can be used via access software (“Software as a Service”). The Customer wishes to acquire a license for the rental use of such an application via the Internet. The following General Terms and Conditions govern the acquisition of the license and the scope of the permitted use.

(1) Scope

1. All deliveries and services of Bion Analytics Unternehmergesellschaft (haftungsbeschränkt), Sternstraße 58. 40479 Düsseldorf (hereinafter “Provider”), which are provided to the Customer within the scope of Software as a Service (hereinafter “SaaS”), are exclusively based on the following General Terms and Conditions in the version valid at the time of the order. Unless expressly agreed in writing, deviating terms and conditions shall not apply.

2. Notwithstanding the provisions of paragraph (1), the Provider may provide services for which additional special conditions and specific regulations of the Manufacturer apply. If these services are offered, these additional conditions are referenced in the offer and also become part of the contract. In the event of contradictions, the regulations in the additional terms and conditions shall take precedence over these GTC in case of doubt.

3. Customer in the sense of these terms and conditions can only be entrepreneurs (hereinafter “customer”). For the purposes of the Terms and Conditions, these are natural or legal persons or partnerships with legal capacity who, at the time of conclusion of the contract with the Seller, are acting in the exercise of their commercial or independent professional activity.

(2) Subject matter of the contract -SaaS services-

1. The subject matter of the contract is

• the rental provision of software by the provider for use by the customer via the Internet. The software that is the subject of the agreement is defined in the agreement on the provision of software (“SaaS Agreement”).
• the granting of computing power and storage space by the provider for the processing of data in accordance with the offer.

(together hereinafter referred to as the “Service”)

2. The establishment and maintenance of the data connection between the transfer point defined under § 3 (3) and the customer’s IT systems shall not be the subject of the service.

3. The source code of the software is also not subject matter of the contract..

(3) Software provisioning

1. The software shall be made available to the customer for the duration of this contract in the respective current version via the Internet against payment. For this purpose, the Provider shall make the software available on a server for retrieval. The software is accessed via the Internet using suitable access software. In addition, certain applications may be necessary for the retrieval. The Provider shall inform the Customer of this in the offer phase.

2. Version changes with change notices shall be announced to the customer in good time beforehand.

3. The Provider shall adapt its services to market-relevant technical changes during the term of the contract to the extent necessary. However, the customer has no claim to specific improvements.

(4) Granting of storage space

1. The customer shall be provided with storage space on a server for processing the data. Depending on the service, the customer may process or store data up to an extent in accordance with the technical specification set out in the offer. If the storage space is not sufficient, the customer may, subject to existing availability, expand the storage space for a fee.

2. The provider shall ensure that the stored data can be accessed via the Internet. The provider does not owe an uninterrupted accessibility.

3. The Provider is obliged to take the usual precautions against data loss and to prevent unauthorized access to the Customer’s data by third parties. For this purpose, the Provider shall regularly make a backup copy of the Customer’s data. The security precautions are described in the Technical and Organizational Measures (TOM), which are part of the Order Processing Agreement.

4. The provider must be notified immediately in the event of data loss. In the event of data loss, the provider shall restore the last backup. If the customer is responsible for the data loss, he has to reimburse the provider for the resulting expenses.

(5) Support

The provider accepts inquiries from the customer regarding the use of the software during normal business hours by telephone or e-mail and will answer them as soon as possible.

(6) Access to the software

The customer receives the access data for the administration access of the software from the provider after the start of the contract.

1. Only natural persons with clear names may be registered as users. The Customer shall verify the identity of the users and document their user data in a directory of its registered users (“named user”) together with the respective access code.

2. The user-accounts may only be used by the number of employees specified in the offer. A license must be permanently assigned to an employee and is used by this employee on a permanent basis. A license may not be divided among several employees. Licenses may only be transferred to another employee in justified cases (employee leaving the company, extended vacation, extended illness), in which case the previous employee loses his/her access. The Provider must be notified immediately of any change of user.

(7) Rights of use to the software

1. The customer receives a non-exclusive, non-transferable right, limited in time to the term of this agreement, to access the software via the internet and to use the software as intended.

2. The software may only be used by a certain number of specified users at the customer (“named user”). The number of permitted users is specified in the offer.

3. The customer is not entitled to use the software beyond the rights granted in the above paragraphs or to have it used by third parties. Use is only permitted within the scope of the customer’s own business operations. In particular, the customer shall not be permitted to reproduce or exploit the software or parts thereof, whether by sale, lease or by any other means of exploitation.

(8) Interruption of accessibility

1. Adjustments, changes and additions to the services provided as well as measures serving to determine and remedy malfunctions will only lead to a temporary interruption of accessibility if this is absolutely necessary for technical reasons. Planned and announced maintenance work shall not be considered downtime. The Provider shall endeavor to announce maintenance work at least 7 days prior to its commencement.

2 The Provider shall endeavor to ensure a high availability of services. However, there is no claim to a minimum availability.

(9) Obligations of the customer

1. The Customer undertakes not to process any data in connection with the use of the Software that violates laws, official requirements or the rights of third parties. If the customer recognizes that there is a violation of this obligation, he must inform the provider immediately and stop the violation. The Customer shall indemnify the Distributor in this respect against all claims of third parties upon first request.

2. The customer is obliged to prevent unauthorized access by third parties to the protected areas of the software by taking appropriate precautions.

3. Without prejudice to the provider’s obligation to back up data, the customer itself is responsible for entering and maintaining its data required to use the services.

4. The customer is obliged to check his data for viruses or other harmful components before storing them on the storage space provided and to use state of the art virus protection programs for this purpose.

5. The customer is obliged to keep his access data secret and not to make it accessible to third parties.

6. The customer will oblige its users to comply on their part with the provisions and obligations applicable to the use of services under this contract.

7. The customer has to ensure the generally necessary technical requirements for the use of the services (e.g. sufficient bandwidth, modern web browser) during the contract period. Otherwise, it may lead to faulty operation, for which the provider is not responsible. The Provider shall notify the Customer of any special technical requirements during the offer phase.

8. In the event of disruptions, functional failures or impairments of the services, the customer is obliged to inform the provider of this immediately and as precisely as possible. If the customer fails to provide such notification, § 536c BGB shall apply accordingly. If access to the Customer’s access by way of remote maintenance is necessary to remedy the malfunction, the Customer shall allow the Provider such access.

9. Insofar as the Customer’s data stored on the storage space provided contains personal data, the Customer shall conclude the order processing agreement with the Provider.

(10) Remuneration

1) For the provision of services, the customer undertakes to pay the remuneration agreed in the offer. The obligation to pay the usage fee begins as soon as the provider has carried out and confirmed the activation. The monthly basic remuneration shall be invoiced monthly in advance. Additional remuneration incurred during the month will be billed in the next monthly statement.

2) The customer is entitled to use the software beyond the scope agreed in the offer only with the prior written consent of the provider. In the event of additional use without consent, the Provider shall be entitled to demand additional remuneration based on the rates agreed in the offer.

3) All prices are quoted in Euro plus the statutory value added tax applicable.

4) The provider is entitled to adjust the remuneration at most once a year to additional functionality, inflation, increased operating costs, etc.. An increase may be made for the first time after the expiration of one year after the conclusion of the contract. The customer will be informed about the increase in due time, at least one month before it comes into effect. He has the right to terminate the lease within a period of six weeks after receipt of the announcement of an increase, if the increase amounts to more than 20% within three years.

(11) Warranty and liability

1. The Provider warrants the agreed quality of the services rendered and that the Customer’s use of the services within the contractual scope does not conflict with any third-party rights.

2. In the event of material defects, the Provider shall, at its discretion, either provide the Customer with a new, defect-free services or remedy the defect within a reasonable period of time; the Provider shall also be deemed to have remedied the defect if it demonstrates to the Customer reasonable options for avoiding the effects of the defect (“workaround”).

3. In the event of defects of title, the Provider shall, at its discretion, provide the Customer with a legally flawless opportunity to use the services or replaced or modified services of equal value.

4. The provider is entitled to make the removal of defects dependent on the customer not being in arrears with the payment of his rent.

5. Information on the properties of the services rendered, technical data and specifications in the offer or the descriptions of services and other documents relevant to the contract serve solely to describe the respective services. They are not to be regarded as a guarantee (or warranted property) within the meaning of the German Civil Code. No warranty promises are made by the provider.

6. In all cases of contractual and non-contractual liability, the provider shall pay damages exclusively as follows:
a) in case of intent and gross negligence without limitation;
b) in the event of slight negligence, only from breach of a material contractual obligation in the amount of the foreseeable damage typical for the contract.
Any further liability is excluded.

7. The strict liability of the supplier according to § 536 a Abs. 1, 1. alternative BGB because of defects, which already exist at the time of the conclusion of the contract, is excluded.

8. The limitations of liability according to the preceding clauses shall not apply in the case of liability for bodily injury and in the case of liability according to the product liability law.

9. Claims of the customer from this contract from warranty and liability expire at the latest after 12 months from the due date and possible knowledge of the claim. This does not apply in case of intent and gross negligence as well as in case of bodily injury, in case of non-fulfillment of independent guarantees and in case of fraudulent intent of the provider.

(12) Force majeure

1. The provider is exempt from the obligation to perform under this contract, insofar as the disruption of services is due to the occurrence of circumstances of force majeure after the conclusion of the contract.

2. Circumstances of force majeure include, for example, war, strikes, riots, expropriations, cardinal changes in law, storms, floods and other natural disasters as well as other circumstances for which the Provider is not responsible. These include in particular water ingress, power failures and interruptions or the destruction of data-carrying lines or infrastructure through no fault of the Provider.

3. Each Party shall immediately notify the other Party in writing of the occurrence of a case of force majeure.

(13) Contract-term and termination

1. The contract begins as soon as the provider carries out the activation and confirms it in text form. The contract shall run for an indefinite period after expiry of the minimum contract term of twelve (12) months after the start of the contract and may be terminated by either party with three (3) months’ notice, at the earliest on expiry of the minimum term. The contract shall be extended by one year in each case if it is not terminated in writing within the notice period.

2. The right of the parties to extraordinary termination for good cause shall remain unaffected. Good cause for extraordinary termination shall exist in particular if

a) a party repeatedly breaches material contractual obligations under this Agreement; material contractual obligations include, in particular, the timely payment of the remuneration.

b) a party commits a tortious act in connection with this contract;

c) one party ceases business operations in whole or in part, and the immediate continuation of the contract is not secured by a legal successor.

3. The notice of termination must be given in text form.

4. The customer’s contractual rights of use shall end upon termination of the contract, irrespective of the reason.

5. The customer may demand that the provider return the stored data in a common digital format up to one month after termination of the contract. After the expiration of the one-month period, all data will be permanently deleted without further notice.

(14) Reference

1. The Provider is entitled to use the Customer’s name and logo/s for its own media presence as a customer reference. The customer may object to the reference naming at any time for the future. Order details or names or departments of contact persons of the customer may not be used.

2. The information and documentation cleaned of personal data can be freely used by the provider in anonymized form for the preparation of benchmarks, industry reports, white papers and media contributions, as long as no order-specific details are mentioned in the process.

(15) Other

1. The law of the Federal Republic of Germany shall apply. For disputes arising from this contract, the exclusive place of jurisdiction is the registered office of the provider.

2. Oral collateral agreements have not been made. Amendments to this contract shall only be valid if they are agreed in writing between the contracting parties. This shall also apply to the amendment of the written form clause itself.

3. Should any provision of this contract be or become invalid, this shall not affect the validity of the remaining provisions of the contract.