1. scope of application
1.1 The following general terms and conditions of business and use apply to all contractual relationships, relationships similar to contracts and pre-contractual negotiations of HUMANSTARSapp GmbH, Steinacher Straße 6-12, 90427 Nuremberg (hereinafter "Provider") in connection with the provision of the client- and server-based application "HUMANSTARSapp" by the Provider to the customer (hereinafter "Customer").
1.2 The services offered by the Provider are exclusively directed at entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), i.e. natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, act in the exercise of their commercial or independent professional activity.
1.3 The supplier does not recognise any deviating general terms and conditions of business and purchase used by the customer. These shall not become part of the contract, even if the supplier does not expressly object to the validity of such regulations of the customer.
2 Subject matter of the contract
2.1 The subject matter of the contract is the provision of the client- and server-based communication and messaging application "HUMANSTARSapp" of the provider, including the interfaces for remote access to databases and systems of the provider or third party providers (hereinafter uniformly referred to as "software"), for a limited period of time and against payment.
2.2 An obligation to provide or transfer non-published programme versions or the source code of the software is not the subject matter of the contract.
2.3 The official programme description available at the time of conclusion of the contract and the contractually agreed service package shall be conclusively authoritative for the contractually agreed quality and the contractually agreed scope of functions of the software. A quality or a functional scope of the software that goes beyond the official programme description or the agreed service package is not owed. In particular, the customer cannot derive such an obligation from other representations, statements or advertising statements by the provider, its employees or its sales partners, unless the provider has confirmed this in writing. The Provider does not warrant that the Software is suitable for any other particular purpose intended by the Customer.
2.4 The customer has informed himself about the scope of services and the essential functional features of the software. It is the sole responsibility of the customer to set up a functional hardware and software environment for the software which is sufficiently dimensioned taking into account the additional load caused by the software.
2.5 The interfaces to databases, systems and modules of third-party providers contained in the software are digital connections via which data, content and services can be automatically retrieved and integrated into the functions of the software. The provider is only responsible for opening up the possibility of accessing, retrieving and exchanging such data and content. The Provider is not responsible for the data and content itself, nor for its up-to-dateness, correctness and completeness, unless it is data and content generated by the Provider itself or the lack of correctness or completeness of such data is due to circumstances for which the Provider is responsible.
2.6 In order to ensure the intended functions of the software for the data generated by the customer (hereinafter: "application data"), the Provider shall provide storage space to the extent specified by the customer in the selected service package. Insofar as the scope of the storage space is not expressly specified, the Provider shall owe the provision of storage space to a reasonable extent.
2.7 If and to the extent that the provision of a new program version of the software is accompanied by a significant change in functions, the Provider shall announce this to the Customer in text form no later than six weeks before such change takes effect. If the customer does not object to the change in writing within a period of two weeks from receipt of the change notification, the change shall become part of the contract. The Provider shall draw the Customer's attention to the aforementioned deadline and the legal consequences of its expiry in the event of failure to exercise the option to object whenever changes are announced.
2.8 The Provider shall deliver the software by sending the object code of the software ready for installation on a data carrier or by making it available for download by the Customer and notifying the Customer of the provision, stating all information required for the download.
2.9 Unless otherwise agreed, the Supplier shall provide the Customer with integrated user help. The Customer accepts this as documentation and user manual. The customer is entitled to save and reproduce the documentation and user manual if and to the extent this is necessary for the intended use of the software.
2.10 Installation and the making of customer-specific settings to the installed software are not owed.
3 Online Services
3.1 The software contains interfaces for remote access via the Internet to databases and systems of the Provider or of third-party providers which are integrated via systems of the Provider (online services). The subject matter of the contract for online services is the technical provision of a remote access or transmission option.
3.2 The Customer's connection to the Internet, the data line via which the remote access or transmission is to take place and the connection of databases and systems of third-party providers which are not connected via systems of the Provider (on-premise) are not part of the Online Services of the Provider and therefore not the subject matter of the contract.
4 Granting of rights of use
4.1 The Provider grants the Customer the simple, non-exclusive, non-transferable and non-sublicensable right to use the software during the term of the contract for exclusively its own operational purposes in accordance with its intended use and to the extent specified in the agreed service package. The granting of rights of use is subject to full payment of the contractually agreed remuneration due.
4.2 The customer is only entitled to use the software in excess of the rights of use granted with the prior written consent of the supplier. In the event of additional use without the consent of the Provider, in particular in the event of simultaneous use by a larger number of users than may have been agreed, the Provider shall be entitled to invoice the amount due for the additional use in accordance with the price list valid at that time.
4.3 The Customer may only use the Software for the purpose of processing its internal business transactions. In particular, (i) a computer centre operation for third parties or (ii) the temporary provision of the software (e.g. as application service providing or software as a service) or (iii) the use of the software for the training of persons who are not employees of the Customer is not permitted and requires a separate agreement with the Provider. Commercial subletting or sub-leasing is prohibited.
4.4 Duplications of the software are only permitted to the extent that this is necessary for use in accordance with the contract. The customer may make backup copies of the software to the extent necessary in accordance with the rules of technology. Backup copies on movable data carriers shall be marked as such and provided with the copyright notice of the original data carrier.
4.5 The customer is not permitted to make changes, extensions or other modifications to the software within the meaning of § 69 c No. 69 c No. 1 of the German Civil Code. The customer is only authorised to make changes and other modifications to the software within the meaning of § 69 c No. 2 UrhG (German Copyright Act) to the extent that this is permitted by law. Before the customer eliminates errors himself or through third parties, he shall allow the provider two attempts to eliminate the error. The customer shall not be entitled to its own rights of use and exploitation - beyond the rights of use granted - in respect of such processing.
4.6 The Customer is only entitled to decompile the software within the limits of § 69 e UrhG and only if the Provider has not provided the necessary data and/or information to establish interoperability with other hardware and software after a written request with a reasonable period of time.
4.7 If the Provider provides the Customer with a new programme version (e.g. patch, update, upgrade) within the scope of rectification or maintenance, which replaces the previously provided software, this shall be subject to the same contractual provisions. If the Provider provides a new programme version, the Customer's rights with regard to the old software shall expire even without an express request for return as soon as the Customer uses the new software productively.
5 Availability and troubleshooting
5.1 Unless otherwise agreed, the Provider guarantees a monthly average availability of 98% for the Online Services in accordance with clause 3.1. Periods of non-availability do not include outages and impairments of accessibility due to regular maintenance work between 22:00 and 06:00 every day.
5.2 The Provider shall provide a telephone hotline on working days, Monday to Friday from 09:00 - 18:00 (hereinafter "normal business hours"). The Customer shall inform the Provider by telephone, e-mail or in writing of any problems that have occurred. For this purpose, the customer shall provide all necessary information for the fastest possible processing. In the event of problems on the part of the customer which cannot be solved immediately by means of telephone consultation, the provider will analyse the error and work out possibilities for error elimination. If the error cannot be rectified within twelve hours of the Provider becoming aware of the error, the Provider shall notify the Customer of the expected timeframe for rectifying the error, stating the reasons. The response and troubleshooting times do not take into account times outside the Provider's normal business hours.
6. data storage of application data
6.1 The Provider shall keep the application data stored by the Customer and all other stored data of the Customer stored and available for a period of one month during the term of the contract and after termination of the contract.
6.2 The Provider shall make the Customer's application data available for takeover at the Customer's request on a common data carrier in a common data format or by way of remote data transmission against reimbursement of the necessary and proven costs. The Provider is not entitled to retain the Customer's Application Data.
6.3 If and to the extent that a database, databases, a database work or database works are created by compiling application data on the Provider's server, the Customer shall be entitled to all rights thereto. The Customer shall remain the owner of the databases or database works even after the end of the contract. After data backup has been made possible and prior notification in text form requesting the customer to download the data backup within three weeks, the provider is entitled to delete the databases.
7. duties and obligations of the customer
7.1 The customer is obliged to keep the usage and access data provided to him secret, to protect them from access by third parties and not to pass them on to other users or third parties. The customer shall take suitable precautions to prevent misuse of the usage and access data and unauthorised use of the online services in accordance with section 3.1.
7.2 The Client shall inform the Provider immediately if there is any suspicion that the access data or passwords may have become known to unauthorised persons or if the Client has knowledge that unauthorised access to the Online Services has taken place via the Internet or telecommunications connection opened by him.
7.3 The Client shall ensure that data is neither retrieved from the system nor transferred to the Provider's system via the Internet and telecommunications connection opened by him, insofar as this does not correspond to use in accordance with the contract or the security and integrity of the Provider's system or the data stored there is jeopardised as a result. The Customer shall in particular use virus protection programs on its systems.
7.4 The customer shall ensure that the content transmitted to the provider via the internet or telecommunication connection opened by him is free of third party rights or that he has sufficient rights of use and exploitation.
7.5 The Customer shall ensure that the functions made available by the Provider are not used for racist, discriminatory, pornographic purposes, purposes that endanger the protection of minors, politically extreme purposes or purposes that otherwise violate the law or official regulations or requirements.
7.6 The customer shall ensure that the application data generated using the software are backed up regularly and in accordance with the significance of the data in order to be able to restore them in the event of loss of data.
7.7 The Customer shall observe the instructions given by the Provider for the installation and operation of the software. He shall inform himself at regular intervals on the website of the Provider about current product instructions and take these into account during operation.
8 Blocking, deletion
8.1 If the customer violates the regulations in section 7.1 or for reasons for which he is responsible, the Provider may, after prior written notification of the customer, block the customer's access to the online services in accordance with section 3.1 or application data in accordance with section 6.1 if the violation can be demonstrably remedied.
8.2 If the Customer unlawfully violates Clause 7.5, the Provider shall be entitled to delete the data affected thereby.
9. Remuneration, terms of payment, exclusion of set-off
9.1 Unless otherwise agreed, the remuneration shall be based on the price level resulting from the Provider's price list valid at the time of the conclusion of the contract for the respective number of user accounts attributable to the Customer.
If the number of user accounts increases in the current calendar year, the remuneration shall be based on the price level applicable to the increased number of user accounts as of the calendar month following the change. In the event of a reduction in the number of user accounts, the last applicable price level shall remain unchanged.
9.2 Unless otherwise agreed, the remuneration for the current calendar year shall be due for payment without deduction in advance with a payment period of ten working days against proper invoicing. The Provider shall be entitled to adjust the advance payment for the current calendar year on the basis of an increase resulting from Section 9.2.
All prices are subject to the applicable statutory sales tax.
9.3 In the event of late payment, the Provider shall be entitled to charge the Customer interest from the due date in the amount of 9 percentage points p.a. above the respective base interest rate. In the event of a return debit note, additional costs shall be incurred for the renewed collection. In addition to the fees charged by the bank, a processing fee of 15 euros per return debit note will be charged.
For current payments, the customer shall only be entitled to a right of set-off insofar as its counterclaim has been legally established or is undisputed. The customer shall only be entitled to assert a right of retention due to counterclaims from the respective contractual relationship.
10 Defects of quality and title
10.1 In the event of material defects, the Provider shall first provide a warranty by means of subsequent performance. For this purpose, it shall, at its own discretion, provide the customer with a defect-free programme version of the software or eliminate the defect. Elimination of the defect shall also be deemed to have taken place if the Provider shows the Customer reasonable possibilities of avoiding the effects of the defect.
10.2 In the case of defects of title, the Provider shall first provide warranty by means of subsequent performance. For this purpose, the Provider shall, at its own discretion, provide the Customer with a legally flawless opportunity to use the software or replace it with equivalent software.
10.3 The customer is obliged to accept a new programme version of the software or equivalent software if the contractual scope of functions is maintained and the acceptance does not lead to significant disadvantages.
10.4 If two attempts at subsequent performance fail, the customer shall be entitled to set a reasonable period of grace for the rectification of defects. In doing so, he shall expressly point out in writing that he reserves the right to withdraw from the contract and/or claim damages in the event of renewed failure.
10.5 If the rectification of defects also fails within the grace period, the customer may terminate the contract or reduce the remuneration.
10.6 The Supplier shall provide compensation for damages or reimbursement of futile expenses due to a defect within the limits set out in these General Terms and Conditions of Business and Delivery. After expiry of a deadline set in accordance with clause 10.4, the supplier may demand that the customer exercises his rights resulting from the expiry of the deadline within two weeks of receipt of the demand. After expiry of the deadline, the right of choice shall pass to the supplier.
10.7 If the Provider provides services in connection with a search for alleged defects in the software or their elimination without being obliged to do so, the Provider may demand remuneration for this. This applies in particular if a defect is not demonstrably attributable to the Provider. In addition, the Provider shall be remunerated for any additional expenditure incurred because the Customer has not complied with its duties to cooperate and provide information.
10.8 If third parties assert claims that prevent the customer from exercising the rights of use granted to him under the contract, the customer shall inform the Provider immediately in writing and comprehensively. If the customer is sued, he shall coordinate with the provider and shall only take legal action, in particular acknowledgements and settlements, with the provider's consent.
11 Liability
11.1 In all cases of contractual and non-contractual liability, the Provider shall pay damages in full only in the event of intent, as well as in the event of the absence of a quality for which the Provider has assumed a guarantee.
11.2 In the event of gross negligence, the Provider shall only be liable in the amount of the foreseeable damage that was to be prevented by the breached obligation.
11.3 In other cases, the Provider shall only be liable for breach of a material contractual obligation if the purpose of the contract is thereby jeopardised, but always only to the extent of the foreseeable damage.
11.4 Otherwise, the liability of the provider is excluded. The exclusion of liability also applies to the Provider's legal representatives and its vicarious agents.
12 Commencement and Term of Continuing Obligations, Termination
12.1 Unless otherwise agreed, the contract term shall be 12 months and shall commence upon provision of the Software. The contract term shall be extended in each case by a period of a further 12 months if the contract is not terminated with a notice period of 6 weeks to the end of the respective contract term.
12.2 During the term of the contract, the right of termination shall be excluded for both parties.
12.3 The right of the contracting parties to extraordinary termination for good cause shall remain unaffected.
12.4 The termination must be in writing.
13 Termination of contractual relationships
13.1 Upon termination of the contractual relationship, the customer shall return any objects, original data carriers including manuals and documentation provided to him if and to the extent that they are not intended to remain with the customer in accordance with the purpose of the contract. Any copies made shall be deleted completely and permanently.
13.2 Instead of returning the items, the Supplier may also demand that they be deleted or destroyed.
14 Final provisions
14.1 The substantive law of the Federal Republic of Germany shall apply exclusively to all contractual relationships between the customer and the supplier. The application of the UN Convention on Contracts for the International Sale of Goods (UNCITRAL) is excluded.
14.2 The place of jurisdiction for both contracting parties is the registered office of the Provider. The Provider is entitled to assert its own claims at the place of jurisdiction of a customer at its own discretion.
14.3 Should individual clauses of the above general and special terms and conditions of business and delivery be invalid in whole or in part, this shall not affect the validity of the remaining clauses. The contracting parties shall agree on a substitute provision which comes closest to the economic purpose of the invalid provision. In case of doubt, the statutory provisions shall apply.