Note: This contract has been translated for your convenience by google translate. The legally binding version is currently the german one. We are reworking our contract framework and will update this page with a binding english verion soon.
General terms and conditions of New Solutions GmbH for Software as a Service
Status: March 2014
1. Content and creation
1.1. Parties and Subject. This contract regulates the legal relationship between New Solutions GmbH, Marktler Straße 61, 84489 Burghausen (“New Solutions”) and its customers (“Customer”) with regard to the provision of software for use over the Internet (Software as a Service ). The respective service certificate also applies for the corresponding provision of individual software products. New Solutions does not provide its services for consumers, but exclusively for the purposes of the customer’s commercial or independent professional activity.
1.2. No deviating regulations. The validity of deviating or going beyond these regulations is excluded. This applies in particular to the customer’s general terms and conditions, even if New Solutions accepts an order from the customer in which the customer refers to his general terms and conditions and / or is attached to the customer’s general terms and conditions and New Solutions does not contradict this.
1.3. Conclusion of the contract. The contract is concluded when the customer and New Solutions sign a service slip.
1.4. Electronic Commerce Obligations. Section 312g para. 1 numbers 1, 2 and 3 as well as § 312g para. 1 sentence 2 BGB, which provide for certain obligations of the entrepreneur in contracts in electronic business transactions, are waived.
2. New Solutions Services
2.2. Availability. New Solutions provides the customer with the service in accordance with the service description in the service certificate (service levels). The customer is responsible for the Internet connection between the customer and the data center and the hardware and software required for this (e.g. PC, network connection, browser). New Solutions provides its service at the connection point of the data center used by New Solutions to the Internet.
2.3. Facility. The customer sets up the service for the first time (individual settings or input / import of data) himself. A change in the service, in particular a reprogramming according to the wishes of the customer, is not owed. Corresponding services are to be specially agreed and paid for.
2.4. Support. New Solutions provides free email support to help you use the service. The support does not include: general know-how transfer, training, configuration and implementation or customer-specific documentation or adaptation of the software. The support services are provided by New Solutions on working days, Monday to Friday, from 9 a.m. to 4 p.m. Exceptions to this are nationwide public holidays and December 24th and 31st. every year. The time until the first response to e-mail inquiries is 24 hours. Inquiries received outside of support hours are deemed to have been received during the next working day.
2.5. Documentation. Unless otherwise agreed, New Solutions only owes the provision of user documentation as online help or PDF user manual. Further documentation, training or instruction services are to be specially agreed and paid for.
2.6. Changes in performance. The customer is aware that the software is standard software that is provided as a software as service service and that a large number of customers access a central system. The economies of scale resulting from such a multi-tenancy model can only be used if it is a uniform software product that can also be further developed. The parties therefore agree: New Solutions can change the service (including the system requirements) for an important reason. Such a reason exists in particular if the change is necessary due to (i) a necessary adjustment to a new legal situation or case law, (ii) changed technical framework conditions (new browser versions or technical standards), or (iii) protecting system security. In addition, New Solutions can change the service appropriately within the framework of further development of the software (e.g. deactivation of old functions that have largely been replaced by new ones). New Solutions will notify the customer of any changes that are not only insignificantly disadvantageous for him in good time, usually four weeks before they come into effect, by email. The customer’s consent to such a change is deemed to have been given if the customer does not object to the change in writing or by email by the change date. When announcing the change, New Solutions will separately point out this legal consequence again. If the change were to disturb the contractual balance between the parties to the detriment of the customer, the change will not be made.
3. Remuneration and default in payment
3.1. Fee structure. The customer owes New Solutions the remuneration agreed in the service note for the use of the service during the term of the contract. The remuneration can consist of a one-time setup fee, a fixed monthly basic fee and a monthly usage fee that depends on the number of usage units booked.
3.2. The basic and usage fee is incurred. The basic and usage fee is due in full at the start of the contract for the basic term (see section 9.2) and thereafter at the start of each extension term (see section 9.2) for the extension term. An increase in the booked usage units (or change to a higher service package) is possible at any time, a reduction (or change to a lower service package) is only possible with effect at the end of the basic or an extension period or before that with the consent of New Solutions. In the event of an increase in the number of units booked within the basic or an extension period, the additional fees will be charged on a pro-rata basis. For the additional usage units, the prices apply according to the New Solutions price list valid when the additional usage units were ordered.
3.3. Invoicing. New Solutions bills the fees at the beginning of the contract and then monthly in advance. The invoice amount is payable within 30 days. Invoicing takes place online by placing the invoice as a downloadable and printable PDF file in the customer menu or by sending it by e-mail (“online invoice”). There is no entitlement to digitally signed invoices (§ 14 Paragraph 3 UStG). In the case of the online invoice, the customer is deemed to have received it when it can be called up in the customer menu and thus reached his area of disposal or upon receipt of the email. As an alternative to online invoices, New Solutions is free to send invoices by post. However, the customer is only entitled to an invoice being sent by post if the customer requests the invoice from New Solutions and pays the agreed fee (currently EUR 1.50 per individual invoice).
3.4. Payment by direct debit. The invoice amounts are paid by means of SEPA direct debit. The customer undertakes to give New Solutions a corresponding SEPA direct debit mandate (see appendix).
3.5. Beginning of the possibility of use. The use of the service is – except in the context of a free test phase – only permitted and possible after receipt of the invoice amount by New Solutions.
3.6. Net prices. All prices are exclusive of the applicable statutory sales tax.
3.7. Late payment. If the customer comes for two calendar months with the payment of the remuneration or a not inconsiderable part of the remuneration; or in a period that extends over more than two months, with the payment of the remuneration in the amount of double the monthly basic fee plus usage fee, in default, New Solutions is entitled, after a corresponding warning by e-mail or to block access to the service by letter or extraordinary termination of the contract. During the blocking, the customer has no access to the data stored in the service. In the event of termination, Section 9.4 applies.
4. Duties and obligations of the customer
4.1. Backup copies. It is the customer’s responsibility to keep copies of the data entered by him and to make backup copies on a regular basis. If the customer violates his obligation to properly back up data, New Solutions is liable in the event of data loss limited to such damage that would have occurred even if the customer had properly and regularly backed up data.
4.2. Lawful Use. The customer will only use the service within the framework of the contractual and legal provisions and will not violate any third party rights when using it. When using it, he will in particular observe the regulations on data protection, competition law and copyright law and will not import any damaged or illegal data or misuse the service in any other way.
4.3. System requirements and obligation to cooperate. Requirements for hardware and software at the customer’s as well as organizational requirements and the customer’s duty to cooperate are regulated in the service note. Unless otherwise specified, the customer must use a current browser version of Internet Explorer, Google Chrome, Firefox or Safari.
4.4. Tax-relevant data. It is the customer’s responsibility to store data in accordance with the legal requirements (in particular the provisions of commercial and tax law). The customer is aware that the service does not meet the requirements of the “Principles of data access and verifiability of digital documents (GDPdU)”.
5. Customer data and data protection
5.1. Customer data. The data entered by the customer as part of the use of the service (e.g. user, shift events, device data, checklists) and the data generated and attributable to the customer (e.g. log data on the use of the service) (collectively “customer data”) are exclusively available to the customer . New Solutions treats customer data confidentially.
5.2. Use of customer data. The customer hereby grants New Solutions the non-exclusive, worldwide, free of charge, limited to the term of this contract, to use the customer data for the purpose of providing the service, in particular to save it in a data center operated by New Solutions. New Solutions also remains entitled to use the customer data in aggregated or statistical form for error analysis and further development of the functions of the software.
5.3. Order data processing. As far as the customer data is personal data, the following applies: New Solutions processes the customer data as a data processor within the meaning of Section 11 of the Federal Data Protection Act (BDSG) exclusively on behalf of and according to the instructions of the customer and exclusively for the purpose of providing the service. New Solutions takes appropriate technical and organizational measures to protect customer data. The customer remains responsible for the legality of the collection, processing and use of customer data in accordance with the statutory provisions, in particular the BDSG. Details are regulated in a data processing contract concluded between New Solutions and the customer.
6. Claims for defects
6.1. Freedom from defects and quality. New Solutions will provide the service free of material and legal defects and will keep the software in a condition suitable for use in accordance with the contract during the term of the contract. For the contractually agreed quality of the software, only the service description contained in the service note is decisive, but not information on the website, oral or written statements by New Solutions prior to the conclusion of the contract or information contained in marketing materials from New Solutions. The obligation to maintain the software does not include the adaptation of the software to changed conditions of use and technical and functional developments such as changes to the IT environment, in particular changes to hardware or operating systems, adaptation to the range of functions of competing products or establishing compatibility with new data formats.
6.2. Elimination of defects. The customer reports deficiencies in the service to New Solutions immediately and explains the details of how they came about. New Solutions will remedy the defect within a reasonable period of time. New Solutions is entitled to temporarily show the customer how to work around the error and to remedy the defect later by adapting the software, provided this is reasonable for the customer.
6.3. Initial impossibility. The no-fault liability for initial defects according to § 536a Para. 1, alt. 1 of the Civil Code is excluded.
6.4. Statute of limitations. Claims for defects become statute-barred within 12 months. This does not apply in the case of claims for damages for defects insofar as New Solutions is subject to mandatory liability by law (cf. section 8.1 sentence 2)
6.5. Legal regulation. In addition, the statutory rules on liability for defects apply.
7. Indemnification obligations
7.1. Duty of exemption. If third parties (including public bodies) assert claims or legal violations against New Solutions that are based on the allegation that the customer has violated his contractual obligations, in particular has imported illegal data into the service or used the service in an anti-competitive or otherwise illegal manner , the following applies: The customer will immediately release New Solutions from these claims, provide New Solutions with appropriate support in legal defense and release New Solutions from the costs of legal defense.
7.2. Requirements for the obligation to exempt. Precondition for the exemption obligation according to section 7.1. is that New Solutions informs the customer immediately in writing of asserted claims, does not give any acknowledgments or equivalent declarations and enables the customer – as far as possible – to conduct all judicial and extrajudicial negotiations on the claims at the customer’s expense.
8. Limitation of Liability
8.1. Exclusion in certain cases. New Solutions is liable for damage insofar as this a) caused intentionally or with gross negligence on the part of New Solutions, or b) were caused by New Solutions through slight negligence and can be traced back to essential breaches of duty that endanger the achievement of the purpose of this contract, or to the breach of obligations, the fulfillment of which enables the proper execution of this contract and on which the customer can rely ( e.g. customer data is completely lost and old stocks cannot be reconstructed). Incidentally, New Solutions’ liability is excluded regardless of the legal basis, unless New Solutions is legally liable, in particular for injury to life, limb or health of a person, assumption of an express guarantee, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by New Solutions are only made in writing and, in case of doubt, are only to be interpreted as such if they are referred to as “guarantee”.
8.2. Limitation according to the amount. In the case of section 8.1 sentence 1 letter b), New Solutions is only liable to a limited extent for the typically foreseeable damage for a contract of this type.
8.3. Amount of typically foreseeable damage. The parties assume for the cases of number 8.1 sentence 1 letter b) that the “typically foreseeable damage” for all cases of damage occurring in a calendar year corresponds at most to the net remuneration for Software as a Service from New Solutions, which was agreed for this calendar year provided or incurred (whichever of these two amounts is the higher).
8.4. Free trial. New Solutions’ liability is limited to intent and gross negligence for damage caused during a free test phase. 8.5. New Solutions employees and agents. The limitations of liability in Clauses 8.1 to 8.4 also apply to claims against employees and agents of New Solutions.
9. Term and Termination
9.1. Free trial. If the tariff booked by the customer provides for a free test phase, the following applies for the term of the contract: A 30-day test phase begins with the conclusion of the contract. There are no setup, basic or usage fees for the test phase. At the end of the test phase, the basic term according to Section 9.2 begins automatically, unless the customer terminates the contract with a period of 3 working days to the end of the test phase.
9.2. Running time. Depending on the customer’s order, the contract is concluded for a certain term (“basic term”) and is then automatically extended by the same period (“extension term”) if the contract is not signed by one party with a period of four (4) weeks ( “Notice period”) was terminated at the end of the basic or an extension period. Unless otherwise agreed, the basic term and the extension term are each twelve (12) months. The right to terminate for good cause remains unaffected. Section 3.2 applies to the reduction of usage units.
9.3. Shape. The termination must be made in writing.
9.4. Data at the end of the contract. At the end of the contract period, the customer can no longer access his customer data. It is the responsibility of the customer to export the data before the end of the contract period using the export function of the service and to save it for further use. New Solutions is only obliged to hand over customer data beyond this (e.g. provision as an SQL dump or in a certain format) if this has been separately agreed and remunerated. At the end of the contract, New Solutions will delete the customer data, unless New Solutions is legally obliged to store it. If deletion is only possible with disproportionate effort (e.g. in backups), New Solutions is entitled to block the data.
10. Final provisions
10.1. Service ticket. The service note is part of the contract. In the event of a contradiction between these general terms and conditions and the service card, the terms and conditions of the service card shall prevail.
10.2. On Bill. The customer can only offset other claims than his contractual counterclaims from the respective legal transaction or assert a right of retention if this claim is undisputed or legally established by New Solutions.
10.3. Written form. Changes to this contract must be made in writing. This also applies for the waiver of the written form requirement.
10.4. Applicable Law. German law applies exclusively to this contract, excluding the UN sales law.
10.5. Place of jurisdiction. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction is that of New Solutions. New Solutions remains entitled to sue at the customer’s place of business.
10.6. Partial ineffectiveness. Should individual provisions of this contract be or become ineffective, this shall not affect the validity of the remaining provisions. Instead of the ineffective provision, that which the parties would have reasonably agreed upon in accordance with the originally intended purpose from an economic point of view shall apply. The same applies in the event of a loophole in the contract.