1.1 These contractual terms and conditions shall apply to the use of Picasi GmbH’s software as software as a service (“SaaS”) or cloud offering.
1.2 The software is operated by the provider as a SaaS or cloud solution. The customer shall be enabled to use the software stored and running on the servers of the provider or a service provider commissioned by the provider via an internet connection for its own purposes during the term of this agreement and to store and process its data with its help.
1.3 These contractual terms and conditions shall apply exclusively. Contractual terms and conditions of the customer shall not apply. Counter-confirmations of the customer with reference to his own terms and conditions are expressly contradicted.
The provider shall make the software available to the customer for use in a current version at the router exit of the data center in which the server with the software is located (“handover point”). The software, the computing power required for use and the required storage and data processing space shall be provided by the provider. The provider does not owe the establishment and maintenance of the data connection between the customer’s IT systems and the described handover point.
3.1 The provider draws the customer’s attention to the fact that restrictions or impairments of the services provided may arise that are beyond the provider’s control. This includes, in particular, actions of third parties not acting on behalf of the provider, technical conditions of the internet that cannot be influenced by the provider, and force majeure. The hardware, software and technical infrastructure used by the customer may also have an influence on the services of the provider.
Insofar as such circumstances have an influence on the availability or functionality of the service provided by the provider, this shall have no effect on the contractual conformity of the services provided.
3.2 The customer is obliged to notify the provider immediately and as precisely as possible of any functional failures, malfunctions or impairments of the software in accordance with the agreements in the order sheet.
4.1 The provider shall comply with the German data protection legislation.
4.2 The customer grants the provider the right, for the purposes of executing the contract, to reproduce the data to be stored by the provider for the customer to the extent necessary or reasonable to provide the services owed under this contract. The provider shall also be entitled to keep the data in a redundant failover system or redundant failover computer center. In order to eliminate malfunctions, the provider shall furthermore be entitled to make changes to the structure of the data or the data format.
4.3 The provider shall regularly back up the customer’s data on the server for which the provider is responsible to an external backup server. The customer may, to the extent technically possible, excerpt this data at any time for backup purposes and shall be obligated to do so at regular customary intervals.
5.1 A support case exists if the software does not fulfill the contractual functions according to the product description. The scope of the support services depends on the support package agreed on.
5.2 If the customer reports a support case, it shall provide as detailed a description as possible of the respective malfunction in order to enable the most efficient troubleshooting possible.
5.3 The parties may enter into a separate agreement on the provision of support, maintenance and servicing services.
6.1 The payment period and the amount of the remuneration as well as the method of payment shall be governed by the order.
6.2 If the customer delays payment of a due remuneration by more than one week, the provider shall be entitled to block access to the software after prior reminder with setting of a deadline and expiry of the deadline.
The provider’s claim to remuneration shall remain unaffected by blocking access to the software. Access to the software will be reactivated immediately after payment of the arrears. The right to block access shall also exist as a mitigating measure if the provider has a right to extraordinary termination pursuant to Section 11.2.
6.3 After expiry of the initial term, the provider may adjust the prices as well as the rates for an agreed remuneration according to the general price development or if the service is being changed. If the fee increase is more than 5%, the customer may terminate the contractual relationship at the end of the current contractual month.
6.4 The remuneration for other services shall be based on the provider’s price sheet valid at the time.
7.1 The customer shall support the provider in the provision of the contractual services to a reasonable extent.
7.2 The customer shall be responsible for the proper and regular backup of its data. This shall also apply to documents provided to the provider in the course of the performance of the contract.
7.3 For the use of the software, the system requirements resulting from the product description or the order sheet must be fulfilled by the customer. The customer shall be responsible for this.
7.4 The customer shall keep the access data provided to it secret and ensure that any employees to whom access data is provided do likewise. The provider’s service may not be made available to third parties unless this has been expressly agreed by the parties.
In principle, the statutory provisions on warranty apply. The §§ 536b (knowledge of the tenant of the defect at the time of conclusion of the contract or acceptance), 536c (defects occurring during the rental period; notification of defects by the tenant) BGB apply. However, the application of § 536a para. 2 (Tenant’s right of self-remedy) is excluded. The application of Section 536a (1) BGB (Landlord’s liability for damages) is also excluded insofar as the standard provides for strict liability.
9.1 The provider shall be liable for damages of the customer caused intentionally or by gross negligence, which are the consequence of the non-existence of a guaranteed quality, which are based on a culpable breach of essential contractual obligations (so-called cardinal obligations), which are the consequence of culpable injury to health, body or life, or for which liability is provided for under the German Product Liability Act, in accordance with the statutory provisions.
9.2 Cardinal obligations are such contractual obligations, the fulfillment of which enable the proper execution of the contract in the first place and the observance of which the contractual partner may regularly rely on, and the violation of which endangers the achievement of the purpose of the contract on the other side.
9.3 In the event of a breach of a cardinal obligation, liability – insofar as the damage is merely due to slight negligence – shall be limited to such damage as may typically be expected to occur when using the contractual software.
9.4 In all other respects, liability – on whatever legal grounds – is excluded.
9.5 If damage to the customer results from the loss of data, the provider shall not be liable for such damage if the damage could have been avoided by the customer making a regular and complete backup of all relevant data. The customer shall perform a regular and complete data backup itself or have it performed by a third party and shall be solely responsible for this.
10.1 As a technical service provider, the provider stores content and data for the customer, which the customer enters and stores when using the software and makes available for retrieval. The customer undertakes vis-à-vis the provider not to post any content and data that is punishable by law or otherwise illegal in absolute terms or in relation to individual third parties and not to use any programs containing viruses or other malware in connection with the software. The customer shall remain the responsible party with regard to personal data and shall therefore always check whether the processing of such data via the use of the software is covered by the relevant permissions.
10.2 The customer shall be solely responsible for all content and processed data used by it and for any legal positions required for this. The provider shall not take any notice of the customer’s content and shall generally not check the content used by the customer with the software.
10.3 In this context, the customer undertakes to indemnify the provider against any liability and any costs, including possible and actual costs of legal proceedings, if a claim is made against the provider by third parties, including employees of the customer personally, as a result of alleged acts or omissions of the customer. The provider shall notify the customer of the claim and, to the extent legally possible, give the customer the opportunity to defend the asserted claim. At the same time, the customer shall immediately provide the provider with all information available to it regarding the facts that are the subject of the claim.
10.4 Any further claims for damages of the provider shall remain unaffected.
11.1 The term of the contract shall be based on the order.
11.2 Both parties reserve the right to extraordinary termination for good cause if the legal requirements are met. Good cause for the provider shall be deemed to exist in particular if the customer is more than one month in arrears with the payment of a due remuneration despite a reminder. If the customer is responsible for the reason for termination, the customer shall be obligated to pay the provider the agreed remuneration less any expenses saved by the provider until the date on which the contract would end at the earliest in the event of ordinary termination.
11.3 At any time, the contract can be terminated after the current term from the application interface.
11.4 After termination of the agreement, the provider shall return to the customer all documents provided by the customer and still in the possession of the provider as well as data carriers related to the present agreement and delete the data stored by the provider, unless there are retention obligations or rights.
11.5 We don't refund any unused services.
12.1 The parties are obliged to keep permanently secret, not to disclose to third parties, record or otherwise use all information about the other party which has become known or will become known to them in connection with this agreement and which is marked as confidential or is identifiable as business and trade secrets on the basis of other circumstances (hereinafter: “Confidential Information”), unless the other party has expressly consented in writing to the disclosure or use or the information is required to be disclosed by law, court order or administrative decision.
12.2 The information shall not be confidential information within the meaning of this Clause 12 if it has was already known to the other party beforehand without the information being subject to a confidentiality obligation, is generally known or becomes known without a breach of the confidentiality obligations assumed, is disclosed to the other party by a third party without breach of a confidentiality obligation.12.3 The obligations under this Section 12 shall survive the end of this agreement.
The assignment of rights and obligations under this contract is permitted only with the prior written consent of the provider. The provider is entitled to entrust third parties with the fulfillment of obligations under this contract.
14.1 This agreement and its amendments as well as all declarations, notification and documentation obligations relevant to the contract must be in writing, unless another form has been agreed or is required by law.
14.2 The contract shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods. The place of jurisdiction shall be the registered office of the provider, insofar as the customer is a merchant, a legal entity under public law or a special fund under public law.
14.3 Should individual provisions of this agreement be invalid, this shall not affect the validity of the remaining provisions. In this case, the parties shall cooperate in order to replace invalid provisions by such provisions which correspond to the invalid provisions as far as possible.
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