§ 1 Subject matter of the contract; GTC
(1) The subject matter of the Software as a Service Agreement (the "Agreement") is the granting of the use of the software Procuros Integration Hub (hereinafter referred to as the "Software") of Procuros GmbH (hereinafter referred to as the "Provider") in the Customer's company via a remote data connection and the provision of storage space on the Provider's servers against payment; and limited in time to the term of the Agreement.
(2) These SaaS GTC shall apply in addition to the general GTC of the Provider and the individual contractual agreements when concluding contracts within the meaning of Section 1 (1). If SaaS GTC and general GTC of the Provider contradict each other, the SaaS GTC shall take precedence over the general GTC.
§ 2 Services of the Provider
(1) The Provider grants the Customer the use of the most current version of the Software via a remote data connection by means of access through a browser.
(2) The Provider warrants the functionality and availability of the Software for the duration of the contractual relationship and shall maintain it in a condition suitable for use in accordance with the contract.
(3) The functional scope of the Software essentially includes the following:
- Digital connection of trading partners
- Transfer and retrieval of data from the customer's ERP system
(4) The Provider shall not owe any adaptation to the Customer's individual needs or IT environment, unless the parties have expressly agreed otherwise in writing.
(5) The customer remains the owner of the data stored on the Provider's servers and can demand their return at any time.
(6) After conclusion of the contract, the Provider shall immediately send the Customer access data for the authorized users in electronic form.
(7) Furthermore, the Provider shall provide the Customer with user documentation (the "Documentation") in electronic form after the conclusion of the Agreement. The Documentation can also be viewed at any time during the use of the Software and can be downloaded in a common format from the website of the Provider.
(8) The Provider shall also be obliged to offer training on the use of the Software in a suitable manner and scope. If, in the view of the Provider, an update of the Software leads to an update of the documentation and to a renewed need for training, the Provider shall revise the documentation that deals with the innovations of the Software, make it available and offer the corresponding training.
(9) The Provider shall regularly perform maintenance on the Software and inform the Customer thereof in due time. Maintenance shall be carried out regularly outside normal business hours (Monday to Friday from 8:00 a.m. to 6:00 p.m., excluding federal holidays in Germany, the "Business Hours"), unless due to compelling reasons maintenance must be carried out at a different time.
(10) The Provider may update and further develop the Software at any time and, in particular, adapt it due to a changed legal situation, technical developments or to improve IT security. In doing so, the Provider shall give due consideration to the legitimate interests of the Customer and inform the Customer in good time of any necessary updates. In the event of a significant impairment of the Customer's legitimate interests, the Customer shall have a special right of termination.
(11) If the Provider has significant new features or upgrades of the Software available, the Provider shall offer them to the Customer, notifying the Customer of the additional costs associated therewith.
§ 3 Memory space
(1) Within the scope of the use of the Software, the Provider shall provide the Customer with storage space in a product-specific appropriate scope on a data server of the Provider or a third party commissioned by the Provider. The Customer may use this storage space to store, view and process certain data that is necessary for the use of the Software. No separate costs shall be incurred for the provision of the memory space.
(2) The Provider shall only owe the provision of the storage space and the securing of the data transmitted and processed by the Customer. The Provider undertakes to take appropriate, state-of-the-art precautions against data loss and to prevent unauthorized access by third parties to the Customer's data. For this purpose, the Provider shall make regular backups. Beyond this, the Provider shall not be subject to any custodial or safekeeping obligations.
(3) The customer undertakes not to store any content on the memory space provided whose provision, publication or use violates applicable law, official requirements or the rights of third parties. Furthermore, the customer undertakes to check his data and information for viruses or other harmful components before storing them on the data server and to use state of the art measures (e.g. virus protection programs) for this purpose.
(4) The customer is not entitled to make the memory space made available to him available for use by third parties, either for a fee or free of charge.
§ 4 Scope of use and rights
(1) The Provider is the sole and exclusive owner of all rights to the Software provided.
(2) The customer receives simple, i.e. non-sublicensable, non-exclusive, non-transferable rights to the most current version of the Software, limited in time to the duration of the contract and the agreed territory, to use the Software in accordance with the contractual provisions.
(3) The Software is not physically transferred to the customer; the Software remains on the Provider's systems.
(4) The customer may only use the Software as intended and within the scope of its own business activities by its own personnel. The customer is not permitted to use the Software for any other purpose.
(5) The source code of the Software shall not be made available to Customer and Customer agrees not to reverse engineer, disassemble, decompile, translate or make any unauthorized disclosures itself, or cause or permit any such reverse engineering, disassembly, decompilation, translation or unauthorized disclosures to be made, except to the extent permitted by applicable mandatory law.
(6) The Customer may not duplicate the Software unless this is necessary for use in accordance with the contract or for purposes of reasonable backup or emergency recovery or otherwise permitted under applicable mandatory legal provisions. Duplication in accordance with the contract includes loading into the working memory on the Provider's server, but not installation, even temporarily, or storage on the Customer's data carriers. The Documentation may only be reproduced for internal use.
(7) The customer is not authorized to grant rights of use to the Software, the documentation and other accompanying materials supplied to third parties. Excepted from this is the transfer of the use of the Software to such third parties to whom no independent right of use is granted and who are subject to the instructions of the customer with regard to the use of the Software.
(8) To the extent necessary for use in accordance with the contract, the Customer grants the Provider the right to duplicate the data stored by the Provider for the Customer and to store this data in a failover data center. Should it be necessary to eliminate malfunctions, the Provider shall be permitted to make changes to the structure of the data and the data format.
§ 5 Troubleshooting
(1) The Provider guarantees an overall availability of the Software and retrievability of the data of at least 99% per month at the Delivery Point. The delivery point is the router exit of the Provider's data center. The Provider shall provide the Software at the Delivery Point. The Provider shall be entitled to redefine the Delivery Point if this is necessary for smooth access to the services owed by it.
(2) Availability shall be deemed to be the Customer's ability to use all main functions of the Software. Maintenance times as well as times of malfunction in compliance with the remedial time shall be deemed times of availability of the Software. Times of insignificant malfunctions shall not be considered in the calculation of availability. The Provider's measuring instruments in the data center shall be decisive for the proof of availability.
(3) The Customer shall immediately report any malfunctions to the contact details provided on the Provider's website. Fault reporting and correction is guaranteed within business hours.
(4) The Provider shall remedy serious malfunctions (the use of the Software as a whole or a main function of the Software is not possible) even outside business hours at the latest within two hours of receipt of the report of the malfunction - provided that the report is made within Business Hours. If it is foreseeable that the malfunction cannot be remedied within this period of time, the Provider shall inform the Customer thereof without undue delay and shall notify the Customer of the expected exceeding of the period of time.
(5) Other significant malfunctions (main or secondary functions of the Software are disrupted but can be used; or other not only insignificant malfunctions) shall be remedied within twelve hours within Business Hours at the latest.
(6) The elimination of insignificant disturbances is at the discretion of the Provider.
(7) In the event of impossibility or failure to remedy the defect, culpable or unreasonable delay or serious and final refusal to remedy the defect by the Provider or other unreasonableness of remedying the defect for the Customer, the Customer shall in particular be entitled to reduce the remuneration owed in accordance with the extent of the impairment (reduction). The customer shall not be entitled to assert a claim for reduction by independently deducting the amount of the reduction from the fee to be paid on an ongoing basis; the customer's claim under the law of enrichment to reclaim the overpaid portion of the fee shall remain unaffected.
§ 6 Obligations of the Customer
(1) The Customer undertakes to establish and maintain the necessary remote data connection between the Delivery Point defined in this Agreement and the Customer's IT system in order to use the Software and the associated service offerings.
(2) The contractual use of the Software requires that the hardware and software used by the Customer, including workstations, routers, data communication equipment, etc., meet the minimum technical requirements for the use of the Software (the "Minimum Requirements"). The Minimum Requirements have been communicated to the Customer by the Provider. The configuration of the Customer's IT system required for the use of the Software shall be the Customer's responsibility; however, the Provider offers to support the Customer in this respect against payment on the basis of a separate agreement.
(3) The Customer shall protect the access data transmitted to it against access by third parties and keep it safe in accordance with the state of the art. The Customer shall ensure that it is only used to the contractually agreed extent. The Provider shall be notified immediately of any unauthorized access.
(4) The Customer shall familiarize itself with the information in the Software documentation (Section 2 (7)) and shall prepare an emergency plan for its operation taking into account the information contained in the Documentation. If the Software should fail completely or if its use is only possible in a way that significantly impedes the Customer's operation, the Customer shall immediately take measures to maintain its operation on the basis of the Documentation and the emergency plan.
(5) The Customer shall check the data for viruses or other harmful components before storing them or using them in the Software and shall use state of the art measures (e.g. virus protection programs) for this purpose.
(6) The Customer is responsible for regularly making appropriate data backups.
(7) The Customer warrants that the content and data stored on the Provider's servers, as well as its use and provision by the Provider, do not violate applicable law, official orders, third-party rights or agreements with third parties. The Customer shall indemnify the Provider against claims asserted by third parties on the basis of a violation of this clause upon first request.
§ 7 Warranty
(1) The Provider warrants the functional and operational readiness of the Software and the related service offerings in accordance with the terms of this Agreement. Unless otherwise stipulated below, the statutory provisions on warranty shall apply.
(2) With regard to the granting of the use of the Software as well as the provision of storage space, the warranty provisions of the German tenancy law (Sections 535 et seq. German Civil Code (BGB)) shall apply.
(3) A defect shall be deemed to exist if the Software, when used in accordance with the contract, does not perform as specified in the functional description and this has a material effect on the suitability for the contractually agreed use.
Warranty claims of the customer do not exist
- in case of only insignificant deviation from the agreed quality or in case of only insignificant impairment of the usability of the Software;
- in the event of incorrect operation by the Customer;
- in the event of the use of hardware, software or other equipment that is not suitable for the use of the Software or in the event of non-compliance with the minimum requirements;
- if the Customer fails to notify a defect without undue delay and the Provider was unable to remedy the defect as a result of the failure to notify the defect without undue delay; or
- if the Customer is aware of the defect at the time of conclusion of the contract and has not reserved his rights.
(5) The Customer shall notify the Provider of any defects without undue delay.
(6) The warranty for only insignificant reductions in the suitability of the services rendered is excluded. The strict liability according to Section 536a para. 1 German Civil Code (BGB) for defects that already existed at the time of conclusion of the contract, is excluded.
(7) Insofar as the services offered in connection with the use of the Software are pure services (e.g. support services), the Provider shall be liable for defects in these services in accordance with the rules of service contract law (Sections 611 et seq. German Civil Code (BGB)).
§ 8 Defects of title; indemnification
(1) The Provider warrants that the Software does not infringe any third-party rights. The Provider shall indemnify the Customer against all claims of third parties due to infringements of property rights for which the Provider is responsible in connection with the contractual use of the Software upon first request and shall reimburse the Customer for the costs of reasonable legal action. The Customer shall inform the Provider without undue delay of any claims asserted against it by third parties on the basis of the contractual use of the Software and shall grant the Provider all necessary powers of attorney and authority to defend the claims.
(2) If an exemption is not possible in the external relationship, the obligation applies in the internal relationship.
(3) The claim for exemption according to paragraph (1) expires if the Customer does not inform the Provider immediately about the assertion of claims by third parties, unless there is a case of unlimited liability.
§ 9 Terms of remuneration and payment
(1) In return for the services of the Provider, the Customer shall pay to the Provider the agreed fees plus the applicable value added tax (the "Fee"). The Fee is dependent on the actual use of the Services.
(2) The Fee shall be adjusted in accordance with the agreed conditions in the event of changes to the scope of functions in accordance with the agreed conditions. In this case, the fee increase for the connection of new trading partners or document types applies from the time of the virtual connection request of the partner and/or the document type via the Procuros Portal.
(3) The invoice is issued on a monthly basis. The invoice is due for payment within 14 working days (Hamburg/Germany) without deduction.
(4) The preferred payment method is the "direct debit mandate", which allows the regular collection of the invoice amount by the provider and is available to the customer free of charge. For the use of any other payment methods, an additional processing fee of 15€ per invoice will be charged to the customer.
(5) The first invoiced month starts with the first day of the following month after signing the contract.
(6) In the event of additional costs, the Provider shall be entitled to increase the Fee to be paid accordingly at its reasonable discretion (Section 315 German Civil Code (BGB)). In the event of falling costs, a reduction of the Fee shall also be made at reasonable discretion. The timing of the change of any Fees shall be such that cost reductions can have at least the same effect on the Fees as cost increases.
(7) The Provider shall inform the Customer in text form of any changes to the Fee six weeks before the change takes effect, with reference to the right of termination pursuant to sentence 2. In the event of an increase of the Fee, the Customer shall have the right to terminate the contract without notice.
§ 10 Contract term and termination
(1) The contract comes into force with the signature of both parties and runs for the time agreed in the individual contract.
(2) The contract term, renewal and termination is specifically stated in the contract and is valid for the individual contractual relationship with Procuros. Any termination is required to be in written form.
(3) The right to termination without notice for good cause remains unaffected. In particular, the Provider shall be entitled to terminate the Agreement without notice for cause in the event of repeated or substantial default in payment by the Customer.
(4) In the event of termination of the Agreement, the Provider shall make the data located on the storage space allocated to it available to the Customer free of charge on a mobile data carrier or for download, or provide the Customer with a copy thereof ("Surrender"), following a corresponding request by the Customer.
(5) The Provider shall permanently delete all data of the Customer remaining on its servers 30 days after handover, but no later than one year after termination of the contract, unless the Customer notifies the Provider within this period that the data handed over to it are not readable or complete. There is no right of retention or lien on the data in favor of the Provider. Failure to notify shall be deemed consent to the deletion of the data. The Customer alone is responsible for compliance with the retention periods under applicable commercial and tax law.
(6) Rights of retention as well as the legal landlord's lien according to Sections 562, 578 German Civil Code (BGB) in favor of the Provider regarding the customer's data are excluded.
(7) If the Provider has provided the Software to the Customer, the Customer shall be obligated upon termination of the contract to permanently delete the Software on its IT systems and to return all data carriers with the provided Software as well as all provided documentation, materials and other documents to the Provider. The return shall be at the Customer's own expense.
(8) Any use of the Software after termination of the contractual relationship is prohibited.
(9) The Customer agrees to be considered a reference customer of the Provider. For this purpose, the Provider may include the Customer in a customer directory that may be used for reference and acquisition purposes, e.g. placement on websites.
§ 11 Data protection; secrecy
(1) The parties shall comply with the applicable data protection provisions applicable to them in each case.
(2) If and to the extent that the Provider has access to personal data of the Customer within the scope of the provision of services, the Parties shall conclude a corresponding order processing agreement prior to the start of the processing and attach it to this Agreement as an annex. In this case, the Provider shall process the relevant personal data solely in accordance with the provisions set forth therein and in accordance with the Customer's instructions.
(3) The Provider undertakes to maintain secrecy about all confidential information (including business secrets) which it learns in connection with this Agreement and its performance and not to disclose, pass on or otherwise use such information to third parties. Confidential information is information which is marked as confidential or the confidentiality of which has been communicated in written or electronic form. The obligation to maintain confidentiality shall not apply if the Provider is obliged to disclose the confidential information by law or on the basis of a final or legally binding decision by an authority or court.