Terms and Conditions of SaaS (Software as a Service)
1. Scope, Conclusion of Contract
Diabetizer GmbH & Co. KG (“diabetizer”) provides its clients “Software as a Service” (SaaS) services through the Internet.
The contractual object for the software results from these Terms and Conditions as well as from the provisions made in the relevant service specifications and arrangements made in price lists.
No other contractual terms are part of this contract, even if diabetizer does not explicitly object. Even if no direct reference is made in concluding a contract, the terms and conditions of diabetizer apply exclusively.
Written and verbal offers of diabetizer are non-binding, even if they are not characterized as such. Employees of diabetizer are not authorized to make binding offers. All offers are only to be considered binding upon written order confirmation.
2. Conditions, Arrears
All rates which are communicated orally and / or published are non-binding. Errors and short-term price changes are excepted. All prices are gross inclusive of statutory VAT.
The client can only set off payments against legally established or uncontested claims. The client may only withhold any payment against any legally established or undisputed counterclaims from the respective legal relationship.
During any payment delay of the client, diabetizer is entitled to deny access to the “SaaS service”. If the client fails to pay for two consecutive months, diabetizer is entitled to terminate the contract without previous notice. Diabetizer reserves enforcement of any additional claims due to delay in payment.
Delay of payment on the part of the client starts upon non-payment 30 days after receipt of the invoice or of a reminder or on any calendar date set for payment. From the starting date of the delay, diabetizer has the right to charge interest at 8,12% above the base lending rate of the European Central Bank if the client does not prove that diabetizer incurred interest damage lower than this. The right to claim further damages deriving from the delay shall remain unaffected.
In case diabetizer plans other modifications to the terms and conditions, the service specifications, or prices, these changes will be communicated to the client in writing at least six weeks prior to their taking effect. In the case of amendments to the terms and conditions, the service specifications, or price increases, the client has a special right of termination on the date these changes take effect. If the client does not terminate the contract by written notice within six weeks of receipt of the change notification, these changes become part of the contract on the date these changes take effect. Diabetizer will explicitly inform the client of this consequence in the change notification.
3. Standard Services
Diabetizer is entitled to provide access to the client, for the duration of the contract, to the “SaaS service” through the Internet for a fee. For this purpose, diabetizer stores the software on a server which is accessible via the Internet to the client. Only an Internet-enabled PC and an Internet connection to a third-party IT service provider are required for making use of the service.
Automatic delivery of software upgrades. Software upgrades are new versions of a software which include in particular, in addition to the elimination of any bugs, new functions, or a significant extension of the range of applications, of the flexibility, or productivity. Client warranty claims do not cover these modifications. Software upgrades are generally carried out by means of data transmission. The right of use issued with the software originally purchased shall remain valid.
Special software programs, program changes, or interfaces created by the client or a third party specifically to meet the requirements of the client’s individual system shall not be the subject of this agreement. The client has no right to claim the development of special programs or the modification of standard software for adaptation to the specific requirements of the client’s operations.
Any necessary hardware adaptations required by subsequently delivered software upgrades and updates are to be financed by the client. If the client is not willing to carry out the necessary adaptation, both parties have the right to terminate the “SaaS service” with immediate effect, and with the proportionate refund of the contract fee unexpired upon contract termination.
Diabetizer is not liable for temporary downtime of the server, loss of data (unless other provisions are made), the correct functioning of individual programs, or transmission errors from the server to the client. Diabetizer can not be held responsible for the interception of the data stream between the client and the server by third parties even if the client uses supposedly secure encryption mechanisms. Any intrusion attempts by third parties, if identified, will be communicated by diabetizer immediately.
Diabetizer ensures average server availability of 93% over the year. This does not include times when the server is not accessible due to technical or other problems which are beyond the influence of diabetizer (force majeure, third party failures, etc.).
Diabetizer undertakes to take all the technical precautions necessary to ensure a level of availability as follows.
As a matter of principle, the “SaaS service” will be available to the client seven days a week around the clock.
Diabetizer is entitled to interrupt availability of the software for maintenance purposes or due to other technical requirements.
Diabetizer continuously monitors the functioning capabilities of the data network connection between the client and the server on which the Software covered by the contract is stored, taking into account the availability levels agreed under 4.2, and will notify the client immediately regarding any malfunction. As far as malfunction originates on the part of diabetizer, diabetizer is committed to rapid repair.
5. Response Times in Cases of Disruption
Diabetizer guarantees, for cases of total software failure, a reaction time of 4 hours during normal business hours on working days (Monday through Friday from 8:30 to 17:00). For less severe problems which do not lead to total software failure and which occur during routine operation, diabetizer shall respond within a very short time, but no later than one business day after receipt of the alarm message. Any further levels of reaction times and other services are to be agreed in separate contracts.
For malfunction notifications after business hours, the reaction time begins with the start of business on the next working day. For notifications within business hours, the remaining reaction time not consumed within business hours runs from the start of business on the next working day.
6. Rights of Use
Diabetizer grants to the client the non-exclusive and transferable right to use the “SaaS service” specified in this contract and the related functionality by using a web browser.
The client is not entitled to make the “SaaS service” available for use by third parties. Any sub-letting of the software by the client is expressly prohibited.
In case of intent or gross negligence as well as in cases of errors of guaranteed characteristics, diabetizer is fully liable for all damages attributable thereto.
The liability for further damage is excluded, in particular regarding data loss or hardware failures caused by incompatibility of components on computer systems of the client with new or changed hardware or software, and for system interference which may arise from existing misconfiguration or from older, disruptive, or not completely erased drivers.
8. Force Majeure
Diabetizer is exempt from liability to perform under this contract in cases where the non-performance of services derives from force majeure arising after conclusion of the contract.
Force majeure includes, for example, war, strikes, riots, radical changes in the law, storms, floods, and other natural disasters, and other conditions beyond the influence of diabetizer such as, in particular, water leaks, power outages, and interruptions to or destruction of data-transmission cables.
Each party shall notify the other party immediately of the occurrence of force majeure by e-mail, fax, or letter.
9. Data Privacy, Data Security, and Confidentiality
Both parties shall comply with the applicable data privacy regulations in Germany, and shall contractually bind their employees operating in the context of the contract to comply with the data confidentiality regulations of Article 37 (1) (b) and (c) DSGVO in addition to Section 38 BDSG (n.F.) (a German law), unless they are already bound accordingly.
If the client collects, processes, or utilizes personal data, the client vouches for the fact that he is entitled to do so under applicable regulations, in particular regarding data privacy regulations and, in the event of a violation of rights, indemnifies diabetizer regarding third party claims.
The client maintains, both in contract and data privacy terms, sovereignty over his data, and has the sole right to utilize and own all client-specific data. Diabetizer shall not make exert any control of any data and content stored for the client regarding lawfulness of collection, processing, and use. The responsibility for this is solely that of the client. This holds true also if, and to the extent that, there is a change or addition of client data.
The software application, server, and operating system software and other components of diabetizer are operated in a data center. Diabetizer is entitled to subcontract. In this case, diabetizer will bind the subcontractor to the pertinent obligations.
The parties mutually undertake to treat all information obtained from the other party as confidential, to keep it secret, and not to make it available to any third parties. In particular, business and trade secrets communicated to the other party as well as information designated as confidential are subject to confidentiality. Any documents passed to the partner which are affected by this confidentiality clause shall be marked with a confidentiality notice.
10. Term and Termination
The agreement can be terminated by either party at the end of each contract year. The notice must reach diabetizer at least ten working days before the date on which it is to be effective, be filed in writing. Saturday is not a working day.
The right to terminate the contract on substantial grounds remains unaffected. For diabetizer, this applies in particular to cases where the client violates his incumbent duties.
Upon termination of the contract, the connection with the “SaaS service” shall be blocked. Diabetizer shall delete the data and access codes.
11. Final Provisions
Solely the law of Germany shall apply. Contract language is German.
The exclusive place of jurisdiction for all disputes arising from this contract is Hanover, if the customer is a merchant, a legal person of public law, a public law special fund or domiciled without a court of jurisdiction.
Version/Date: April 2017