Software-as-a-Service (SaaS)

§ 1 Subject Matter

• 1.1

  Subject matter of these license conditions is the provision of the VAM2-SaaS for use by the customer as described in the service description and the granting of rights of use to the service. During the contract period, the customer can change the type and number of licenses with a corresponding adjustment of the remuneration.
• 1.2

  The customer is enabled to access the VAM2 database application via the internet using an internet browser and to use it for his purposes during the contract period. For this, Weiss AG chooses access to server location and server at its discretion.
• 1.3

  The VAM2-SaaS complies with the descriptions in the documentation. Further functionality of the VAM2 database application is not the responsibility of Weiss AG. Representations in the documentation, in test programs, in the product- and project descriptions are not a guarantee of quality.
• 1.4

  The data collected, processed, and generated by the VAM2 database application is stored on the servers of a data center. In any case, the customer remains the sole owner of the data and can, therefore, demand the surrender of individual or all data from Weiss AG within one month of expiry of the term, without Weiss AG having a right of retention. Weiss AG will delete the customer data from all systems one month after termination of the contract unless statutory retention periods conflict with this. The customer is obliged to export and save the customer data in good time before the termination of the contract or expiry of the aforementioned period. At the request of the customer, Weiss AG will support the customer in this against remuneration to be agreed upon. The customer is not entitled to receive software suitable for the use of the data.
• 1.5

  Conflicting general terms and conditions of the customer shall not become part of the contract even without explicit objection and in case of performance unless their validity is expressly agreed in writing.

§ 2 Duration and Free Trial Periods

• 2.1

  After expiry of the free trial period without termination, Weiss AG is authorized to charge a fee equal to the applicable rate (plus any applicable taxes) according to the selected time period on or about the calendar day that corresponds to the beginning of the contractual relationship.
• 2.2

  You can cancel VAM2-SaaS at any time and continue to use VAM2-SaaS until the end of billing cycle. To cancel your subscription, log in to your Account.
  Under Subscription, click “Cancel” and confirm your decision to cancel.
• 2.3

  Weiss AG does not demand payment for the period for which the customer was granted a free trial period concerning VAM2-SaaS.
• 2.4

  Weiss AG reserves the right to increase the remuneration appropriately for the first time 12 months after the commencement of the contractual relationship at its reasonable discretion. Weiss AG is entitled to further increases in compensation if the last price increase occurred at least 12 months ago.
  If the remuneration is adjusted, the customer shall have the right to terminate the contractual relationship within six weeks from the effective date of the price adjustment if the increase exceeds 10% of the last valid prices.
• 2.5

  The parties are entitled to terminate the contract for a good cause with immediate effect, without observing the remaining term.

• a)

  the customer is in arrears with payment obligations arising from this contractual relationship to the extent of at least two months’ fees and has been reminded without success by setting a grace period of two weeks and threatening to terminate the contract,
• b)

  one of the parties violates essential contractual conditions in a significant manner and does not stop this violation within 30 calendar days despite written requests.

§ 3 Rights of Use and Industrial Property Rights

• 3.1

  Weiss AG grants the customer the non-exclusive, non-sublicensable, and non-transferable right to use VAM2-SaaS within the scope of the functionalities and the intended use of the service following the service description and documentation for the term of the contractual relationship. Within this framework, the customer shall be entitled to store, print out, and reproduce an appropriate number of the online documentation made available for this contract while maintaining existing proprietary rights notices. Insofar as this is agreed in an individual contract, the customer may also allow his business partners access to the Services if this is done exclusively within the scope of the intended use of the service for the customer’s business purposes.
• 3.2

  Weiss AG provides the SaaS service by remote access. The SaaS service shall not be made available to the customer for its permanent storage, and the customer is not entitled to make it accessible to the public or to operate the data center operation.
• 3.3

  If Weiss AG provides new versions, updates, upgrades, modifications, or extensions of the SaaS Service or makes other modifications concerning the SaaS Service during the term, the provisions of this paragraph shall also apply to these. Independent of the fact that the modifications or extensions have been ordered by the customer and paid for separately.
• 3.4

  Rights that are not expressly granted to the customer according to these terms of use are not the responsibility of the customer. In particular, the customer is not entitled to
• a)

  use VAM2-SaaS beyond the scope of use agreed in these terms of use or have it used by third parties;
• b)

  to reproduce VAM2-SaaS or to provide it for a limited time, in particular not to rent or lend it.
• 3.5

  In the case that the customer violates the provisions of this clause, Weiss AG may suspend the customer’s access to the service after prior written notification, if as a result of this, the infringement can be remedied. The lock should be lifted as soon as the reason for the lock no longer exists. If the customer continues to violate the provisions of this clause despite a corresponding written warning from Weiss AG, Weiss AG may terminate the contractual relationship without notice, unless the customer is not responsible for these violations. The right of Weiss AG to assert damages remains unaffected.

§ 4 Protection against unauthorized Access

• 4.1

  Weiss AG shall provide the contractual partner with the user ID and password (access information) required to access the program. The contractual partner must protect the access information from unauthorized access by third parties. When using VAM2-SaaS for the first time, the Client must generate a “User ID” and a password himself, which are required for further use of VAM2-SaaS. The customer is obliged to keep the “User ID” and password secret and not to make them accessible to third parties.
• 4.2

  The customer shall inform Weiss AG immediately of any unauthorized access.

§ 5 Customer Data and Indemnification from Claims of third Parties

• 5.1

  As a service provider, Weiss AG stores content and data for the customer, which the customer enters and stores when using the software. The customer guarantees that he has all rights to the customer data, which are necessary for the storage and use of the data and which do not violate applicable law or the intellectual property of a third party.
• 5.2

  The customer is solely responsible for all data and content as well as for any legal positions required for this. Weiss AG is not aware of the customer’s contents and, in principle, does not check the contents used by the customer with the software.
• 5.3

  In this context, the customer undertakes to indemnify Weiss AG against any liability and all costs if Weiss AG is held liable by third parties, including employees of the customer personally, as a result of alleged actions or omissions on the part of the customer. The customer will be informed about the claim by Weiss AG and, as far as this is legally possible, will be allowed to defend against the asserted claim. Also, the customer shall immediately provide all the information available to him about the facts that are the subject of the claim in full.
• 5.4

  Weiss AG is granted the right by the customer to use the customer data stored on the storage space to use the SaaS Service for the fulfillment of the contract, in particular, to reproduce it for this purpose (in particular for data backups), to modify it and to make it available for accessing it.
• 5.5

  Irrespective of Weiss AG’s obligation to back up data in accordance with section 5.4, the customer himself is obliged to back up his customer data regularly. Every data backup must be carried out by the customer in such a way that it is possible to restore the customer data at any time.
• 5.6

  Weiss AG is entitled to immediately block the use of the SaaS-service as soon as there is a reasonable suspicion that the stored customer data is illegal and violates the rights of third parties. Reasonable doubt of unlawfulness or infringement exists in particular if courts, authorities, or other third parties inform Weiss AG thereof. In this case, the customer will be notified immediately by Weiss AG of the blockage and the reason. The lock is lifted as soon as there is no longer any suspicion.

§ 6 Warranty Claims

• 6.1

  Defects in the SaaS Service, including the documentation, shall be processed by Weiss AG within the response times specified in the Service Level Agreement (SLA) after corresponding notification of the defect by the customer. The same applies to other disruptions to the possibility of using the service for which Weiss AG is responsible. Any claims for damages due to defective performance shall be governed by § 8 of these Terms and Conditions.
• 6.2

  The right of termination of the customer for non-granting of use according to § 543 paragraph 2 sentences 1 no. 1 BGB is excluded unless the production of the contractual use is not considered to have failed.
• 6.3

  Insofar as the Saas Service is made available free of charge, no warranty shall be given, except in the case of intent or fraudulent intent.

§ 7 Support

• 7.1

  For support inquiries, the customer has a support area in which the customer can submit an e-mail request via a support ticket. The first support Ticket per month corresponds to the ticket included in the compensation. Each additional support request will be offset against its support ticket quota. Each support ticket guarantees a 48 hour response time. When calculating the reaction time, Saturdays, Sundays, and holidays are not included.
• 7.2

  Support is given only for the latest version. Weiss AG’s support services do not include support by telephone, a remote support session, the creation of configuration files, analysis of program code, or training.
• 7.3

  Also, Weiss AG offers free access to answers to frequently asked questions (FAQ), a VAM user-manual, training videos for all users of the VAM2 database application.
• 7.4

  Reported and verified errors must be remedied as soon as possible as part of a system update, regardless of the respective message.

§ 8 Liability

• 8.1

  Weiss AG is liable in accordance with the legal regulations
• a)

  in case of intent or gross negligence,
• b)

  to the extent of a guarantee assumed by Weiss AG, as well as
• c)

  in accordance with the provisions of the Product Liability Act,
• d)

  in the event of injury to a person’s life, body, or health.
• 8.2

  In the case of damage to property and property caused by other negligence, Weiss AG and its vicarious agents are only liable for breaches of duties whose fulfillment enables the proper execution of the contract in the first place and on whose compliance the customer can regularly rely (essential contractual obligations) but the amount limited to the damages foreseeable at the time of conclusion of the contract and typical for the contract
• 8.3

  Notwithstanding the provision in § 8, the liability of Weiss AG in the event of a negligent breach of a material con-actual obligation for the customer for all damage events in the same contractual year shall be limited in amount according to the following provisions:
• a)

  The maximum amount of liability per contract year is 100% of the compensation paid by the customer in the year of the loss event, up to a maximum of 100,000 Euro.
• b)

  If the maximum liability limit is not exhausted in a contractual year, this does not increase the liability ceiling for the following contractual year. Contract year in the above sense are the first twelve months from the date of the provision according to the contract as well as each subsequent twelve-month period.
• 8.4

  The fault-independent liability for defects that were already present after the contract is excluded.
• 8.5

  Subject to the provisions in § 7.1, Weiss AG is not liable for the loss of customer data if the damage is due to the fact that the customer has failed to carry out data backups in accordance with § 5.5 thereby ensure that lost customer data can be recovered at a reasonable cost. The above limitations of liability also apply in the case of the fault of a vicarious agent of Weiss AG and for the personal liability of employees, representatives, and bodies of Weiss AG.
• 8.6

  If the SaaS service is provided free of charge, Weiss AG assumes no liability for damage resulting from the use of the SaaS service, unless it is a case of gross negligence or intent. Liability under the Product Liability Act is not excluded even in the case of the provision of the service free of charge.

§ 9 Obligations of the Customer

• 9.1

  The contracting parties are aware that the lasting satisfaction of the customer with the software also depends on the efficient and fruitful cooperation of the contracting parties. Therefore, the customer has the following obligations to cooperate:
• –

  Any faults in the contractual software must be reported by the customer to Weiss AG without delay, stating the known information required for their removal, for example, description of the fault, details of the hardware used, network setup, etc.
• –

  Performing a proper data backup and adequate care and maintenance of the software and hardware environment
• –

  The customer documents changes to the configuration and the background of the software.
• 9.2

  The customer is solely responsible for stored content and files that are subject to licensing (such as fonts and images).
• 9.3

  The customer is obliged to check his data and information for viruses or other harmful components before entering them and to use anti-virus programs that comply with state of the art.
• 9.4

  The customer undertakes to indemnify Weiss AG from all claims of third parties based on the data stored by it and to reimburse Weiss AG for any costs incurred by it for possible infringements.

§ 10 Privacy and Confidentiality

• 10.1

  Both parties to the contract must maintain confidentiality about all business and operational matters that have become known to them and all information relating to the performance of the order, strictly confidential and, in particular, without the written consent of the other party to third parties publish.
• 10.2

  Furthermore, the contracting parties undertake not to use the findings and information for their business purposes or in favor of or to the detriment of a third party.
• 10.3

  The contracting parties shall ensure that their employees or third parties who are entitled to receive information are subject to the same confidentiality obligations as laid down in this clause.
• 10.4

  Confidential information and information that is obvious or has been made accessible by third parties in a legally permissible manner is not confidential. The contractor relying on the exemption bears the burden of proof of the existence of these exceptions.

§ 11 Applicable Law, Place of Venue and Precedence

• 11.1

  The legal relationship between Weiss AG and the customer is subject to the German substantive law under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
• 11.2

  Place of venue is Kaiserslautern (Germany).
• 11.3

  If there are differences between the English version of these license conditions and a version in another language, the English language version of these License Conditions will take precedence over the translated version.

§ 12 Right of withdrawal

• If the customer registers with Weiss AG for a purpose that cannot be attributed to the customers commercial or independent professional activity, the following provisions apply to the consumer within the meaning of the law (Section 13 of the German Civil Code):
  The customer has the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of the conclusion of the contract. To exercise the right of cancellation, the customer must inform concerning the decision to withdraw from this contract by an unequivocal statement (e.g., a letter sent by post, fax, or Email). To meet the withdrawal deadline is sufficient for the customer to ship the communication concerning the customer´s exercise of the right of withdrawal before the withdrawal period has expired. 
  The withdrawal should be sent to: Weiss AG Merkurstrasse 45 67663 Kaiserslautern Germany email: info@weiss-ag.com Telephone: +49 631 414049-0 Telefax: +49 631 414049-69
• Consequences of withdrawal

  If the customer withdraws from this contract, we shall reimburse all payments received from the customer, including the costs of delivery (except for the supplementary costs resulting from the customer´s choice of a type of delivery other than the least expensive type of standard delivery offered by us) without undue delay and in any event not later than fourteen days from the day on which Weiss AG are informed about your decision to withdraw from this contract. Weiss AG will carry out such reimbursement using the same means of payment as the customer used for the initial transaction, unless the customer has expressly agreed otherwise, in any event, the customer will not incur any fees as a result of such reimbursement.
  If the customer requested to begin the performance of service during the withdrawal period, the customer shall pay Weiss AG an amount which is in proportion to what has been provided until the customer has communicated Weiss AG the withdrawal from this contract, in comparison with the full coverage of the contract.