General terms and conditions of Rowisoft GmbH for the use of software via the Internet (Software as a Service)
1.1 The provider provides the contractual services, in particular access to the software, within its area of availability (from the data center interface to the Internet). The scope of services, type, purpose and conditions of use of the contractual services result from the respective service description and the operating instructions for the software.
1.2 Additional services, such as the development of customer-specific solutions or necessary adjustments, require a separate written contract.
1.3 The provider may provide updated versions of the software. The provider will inform the customer electronically about updated versions and corresponding usage instructions and make them available accordingly.
2.1 The contractual services may only be used by the customer and only for the purposes agreed in the contract. During the contract period, the customer can access the contractual services via telecommunications (via the Internet) and use the functionalities associated with the software using a browser or another suitable application (e.g. “app”) in accordance with the contract. The customer is not granted any further rights, in particular to the software or any infrastructure services provided in the respective data center. 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 allow third parties to use it or make it available to third parties. In particular, the customer is not permitted to reproduce, sell or make available, rent or loan software or parts of it for a limited period of time.
2.3 The provider is entitled to take appropriate technical measures to protect against non-contractual use. The use of the services in accordance with the contract may no longer be significantly affected as a result.
2.4 In the event that the scope of use is exceeded by a user in breach of contract or in the event of an unauthorised transfer of use, the customer must immediately provide the provider with all information available to him to assert claims due to the use contrary to 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 permitted use or violates regulations to protect against unauthorized use. In this context, the provider may interrupt or block access to the contractual services. The provider will usually provide the customer with a reasonable period of grace beforehand to remedy the situation. The sole revocation of the access right is not considered a termination of the contract at the same time. The provider may only maintain the revocation of the access authorization without notice for a reasonable period of time, which must not exceed 3 months.
2.6 The provider's claim to compensation for use beyond the agreed use remains unaffected.
2.7 The customer has a right to regrant access rights and access options after he has proven that he has stopped using the contract and prevented future use contrary to the contract.
3.1 The availability of the services provided is based on the service description.
3.2 If the suitability of the services for use in accordance with the contract is only insignificantly reduced, the customer is not entitled to any claims for defects. The provider's no-fault liability for defects that already existed at the time the contract was concluded is excluded.
3.3 If compliance with deadlines is affected by a cause for which the provider is not responsible, including a strike or lockout (“disruption”), the deadlines are postponed for the duration of the disruption, including an appropriate restart phase, if applicable. A contractual partner will immediately inform the other contractual partner of the cause of a malfunction occurring in its area and the duration of the postponement.
3.4 If expenses increase due to a malfunction, the provider may also demand compensation for the additional expenses, unless the customer is not responsible for the fault and its cause is 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 or claim compensation in lieu of the service, the customer must, at the provider's request, explain in writing within a reasonable period of time whether he asserts these rights or wishes to continue to provide the service. In the event of withdrawal, the customer must reimburse the provider for the value of previous usage options; the same applies to deteriorations due to intended use. If the provider is in default with the provision of the service, the customer's compensation and expenses due to the delay is limited to 0.5% of the price for the part of the contractual service that cannot be used due to the delay. The default liability is limited to a maximum of 5% of the remuneration for all contractual services affected by the delay; in the case of continuing obligations, in proportion to the remuneration for the respective affected benefits for the full calendar year. In addition and as a priority, a percentage of the remuneration agreed upon conclusion of the contract applies. This does 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 has a right of withdrawal within the framework of legal provisions only if the provider is responsible for the delay. If, as a result of the delay, the customer makes a claim for compensation or reimbursement of expenses in lieu of performance, he is entitled to claim 1% of the price for the part of the contractual service that cannot be used due to the delay, but a maximum of 10% of this price; in the case of continuing obligations in relation to the remuneration for the respective services concerned, for the full calendar year. In addition and priority, a percentage of the remuneration agreed upon conclusion of the contract applies.
3.7 Section 578b BGB remains unaffected by this.
4.1 Insofar as the provider has access to personal data from the customer or from the customer's area, the provider acts exclusively as an order processor and processes and uses this data only to fulfill the contract. The provider will follow the customer's instructions on how to handle this data. The customer bears all adverse consequences of such instructions for the performance of the contract. The customer agrees with the provider the details of how the provider will handle the customer's data in accordance with data protection requirements.
4.2 The customer remains the responsible party both in general in the contractual relationship and under data protection law. Insofar as the customer processes personal data in connection with the contract (including collection and use), he guarantees that he is entitled to do so in accordance with the applicable provisions, in particular the data protection regulations, and releases the provider from third-party claims in the event of a breach.
4.3 The following applies to the relationship between the provider and the customer: The customer is responsible vis-à-vis the data subject for the processing (including collection and use) of personal data, unless the provider is responsible for claims made by the data subject due to a breach of duty attributable to him. The customer responsibly checks, processes and answers all inquiries, requests and claims made by the person concerned. This also applies in the event of a claim against the provider by the person concerned. The provider will support the customer within the scope of its duties.
5.1 The customer is obliged to protect the access rights and identification and authentication data assigned to him or the users from access by third parties and not to pass them on to unauthorised persons.
5.2 The customer is obliged to indemnify the provider from all claims by third parties due to infringements of rights that are based on illegal use of the service item by the provider or have been made with the approval of the provider. If the customer recognizes or must recognize that such an infringement is imminent, there is an obligation to inform the provider immediately.
5.3 The customer will use the options provided by the provider to secure his data in his original area of responsibility.
For any case of unauthorised use of a contractual service within the customer's area of responsibility, the customer must pay compensation in the amount of the remuneration that would have been incurred for the contractual use within the minimum contract period applicable to this service. The customer reserves the right to prove that he is not responsible for the unauthorized use or that no or significantly less damage has occurred. The provider reserves the right to claim further damage.
7.1 The provider guarantees that the services are in accordance with the contract. Claims for material defects do not exist in the event of an only insignificant deviation of the provider's services from the contractual nature. Claims for defects also do not exist in the event of excessive or improper use, natural wear and failure of components of the system environment. The same applies to software errors that cannot be reproduced or otherwise proven by the customer.
This also applies to damage caused by special external influences that are not required under the contract. Claims for defects also do not exist in the event of subsequent alterations or repairs by the customer or third parties, unless this does not make it difficult to examine and rectify a material defect.
7.2 The limitation period for claims for material defects is one year from the legal start of the limitation period. The legal deadlines for recourse in accordance with Section 478 BGB remain unaffected. The same applies insofar as the Act requires longer periods in accordance with Section 438 Paragraph. 1 No. 2 or Section 634a Paragraph 1 No. 2 BGB, in the event of an intentional or grossly negligent breach of duty by the supplier, in cases 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 complaint made by the customer by the provider will only result in a suspension of the statute of limitations if the legal requirements for this are met. There will be no new start of the statute of limitations. Subsequent performance (new delivery or repair) can only have an effect on the limitation period of the defect causing the subsequent performance.
7.3 Claims for recourse to contracts for digital products in accordance with Section 327u BGB remain unaffected by clauses 7.1 and 7.2. If a customer makes a possible claim against the customer, which may result in a recourse claim, the customer will immediately inform the provider of the claim made and the further information necessary and useful for its assessment. The customer must give the provider the opportunity to fulfill the claim made by the customer, unless this is unacceptable for the customer. The customer and the provider will coordinate and work together with the aim of meeting a legitimate requirement from the customer's customer as extensively 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 complaint 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 is not reproducible or can otherwise be proven as a defect by the customer, or
c) additional costs arise because the customer has not properly fulfilled his obligations.
8.1 The provider is only liable for violations of third-party rights as a result of its service to the extent that the service is used unchanged in accordance with the contract and in particular in the contractually agreed, otherwise in the intended operating environment. The provider is only liable for violations of third-party rights within the European Union and the European Economic Area and at the place where the service is used in accordance with the contract. Section 4.1 sentence 1 applies mutatis mutandis.
8.2 If a third party claims to the customer that a service provided by the provider violates his rights, the customer must immediately notify the provider. The provider and, if applicable, its sub-suppliers are entitled, but not obliged, to ward off the claims made at their own expense, insofar as this is permitted. The customer is not entitled to accept third-party claims before he has given the provider a reasonable opportunity to defend the rights of third parties in another way.
8.3 If a service provided by the provider infringes the rights of third parties, the provider will, at its own discretion and expense
a) to provide the customer with the right to use the service, or
b) not to make the service infringing, or
c) withdraw the service against reimbursement of the fee paid for it by the customer (minus an appropriate compensation for use) if the provider is unable to remedy the situation with reasonable effort. In doing so, the interests of the customer must be adequately taken into account.
8.4 Customer claims due to legal defects expire in accordance with Section 7.2.
9.1 The provider receives fault reports from the customer, assigns them to the agreed fault categories (Section 9.3) and, on the basis of this allocation, carries out the agreed measures to analyze and eliminate faults.
9.2 The provider will receive proper fault reports from the customer during normal business hours and assign an identifier to each fault report. At the customer's request, the provider will confirm receipt of a fault report to the customer and provide him with the assigned ID.
9.3 Unless otherwise agreed, the provider assigns the received fault reports to one of the following categories after an initial review:
a) Serious error
The malfunction is based on a defect in the contractual services, which makes the use of the contractual services, in particular the software, impossible or only allows it with significant restrictions. The customer cannot reasonably avoid this problem and therefore cannot complete tasks that cannot be postponed.
b) Other interruptions
The malfunction is based on a defect in the contractual services, which restricts the use of the contractual services, in particular the software, by the customer more than insignificantly, without causing a serious disruption.
c) Other messages Fault reports that do not fall into categories a) and b) are assigned to other messages. Other reports will only be processed by the provider in accordance with the agreements made for this purpose.
9.4 In the event of reports of serious faults and other errors, the provider will immediately take appropriate measures based on the circumstances notified by the customer to first localize the cause of the fault. If, after an initial analysis, the reported fault does not prove to be an error in the contractual services, in particular the software provided, the provider will immediately inform the customer of this. Otherwise, the provider will take appropriate measures to further analyze and eliminate the reported error or — in the case of third-party software — forward the error message together with the analysis results to the distributor or manufacturer of the third-party software with a request for a remedy.
The provider will immediately provide the customer with the measures available to him to circumvent or eliminate a disruption of the contractual services, in particular the software provided, such as instructions for action or corrections to the provided software. The customer must immediately take such measures to avoid or eliminate faults and report any remaining faults to the provider immediately after they have been used.
10.1 The provider sets up a contact point for the customer (hotline). This office processes the customer's inquiries in connection with the technical requirements and terms of use of the provided software as well as individual functional aspects.
10.2 The prerequisite for the acceptance and processing of inquiries is that the customer appoints suitably qualified professional and technical personnel to the provider who are commissioned internally by the customer to process inquiries from users of the provided software. The customer is obliged to send inquiries to the hotline only via the personnel named by the provider and to use the forms provided by the provider for this purpose.
The hotline receives such inquiries by e-mail during the provider's normal business hours. The hotline will process proper inquiries as part of normal business operations and, as far as possible, answer them. The hotline may refer to the documentation available to the customer and other educational resources for the software that are provided for the purpose of answering. Insofar as an answer by the hotline is not possible or is not possible in good time, the provider — insofar as expressly agreed — will forward the request for processing, in particular inquiries about software not produced by the provider. Other hotline services, such as other response times and deadlines as well as communication channels, on-call services or on-site assignments by the provider at the customer's premises, must be expressly agreed in advance.
11.1 The contractually agreed services will initially be provided from the date specified in the contract for the duration of the term agreed in the contract. During this minimum period, early ordinary termination on both sides is excluded.
11.2 The contract can be terminated with a notice period of three months, at the earliest at the end of the minimum term. If this does not happen, the contract is extended by a further year unless it is terminated with a notice period of three months before the end of the respective extension period.
11.3 The right of each contractual partner to terminate the contract for good cause remains unaffected.
11.4 Any termination must be made in writing in order to be effective. The customer is responsible for backing up his data in good time before termination of the contract (e.g. via download). On request, the provider will support the customer in this regard. After termination of the contract, the customer generally no longer has access to these databases for reasons of data protection.
12.1 The customer is responsible for compliance with the 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 must bear the applicable duties, fees and other charges. The customer is responsible for carrying out legal or regulatory proceedings in connection with cross-border deliveries or services, unless otherwise expressly agreed.
12.2 German law applies. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
12.3 The provider provides its services on the basis of its general terms and conditions (GTC). The customer's terms and conditions do not apply, even if the provider has not expressly objected to them. Acceptance of the services by the customer is considered as acceptance of the provider's terms and conditions, waiving the customer's terms and conditions. Other conditions are only binding if the provider has accepted them in writing; the provider's terms and conditions apply in addition.
12.4 Amendments and additions to this contract should only be agreed in writing. If written form is agreed (e.g. for cancellations, cancellations), the 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 is the registered office of the provider. The provider can also sue the customer at the customer's registered office.
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