General Terms and Conditions for Software-as-a-Service (SaaS) Services
1. Scope and subject of contract
These terms and conditions apply exclusively to all contracts that a contractual partner with CompanyMood GmbH, the use and operational support of standard software programs (the "Software"), the CompanyMood GmbH, hereinafter referred to as CompanyMood, and manufactured as Software-as-a-service are provided via the Internet.
Subject of the contract are:
the provision of software programs for use over the Internet listed under www.company-mood.de,
the transfer of an app as client software ("App") to use the software and
storing customer data on servers of the data center
individually developed software programs are not covered by this contract.
The software's apps are made available to the customer via the Apple App Store and Google Play. The installation of the apps on the terminals must be done by the customer. There are differences between the tracker app and the terminal app:
The terminal app (stationary mood assessment on the tablet) is only available in conjunction with a chargeable Business package.
2. Contract conclusion and type and scope of service
The contract is concluded by signing by CompanyMood and the customer or by CompanyMood confirming an offer electronically made by the customer via the www.companymood.com site for the conclusion of a contract.
The nature and extent of the mutual services are governed by the contractual agreements. The scope of services defined in the contract is deemed to be agreed upon. Decisive for this are:
the defined scope of the software listed in the contract, which is set in the user documentation (available at https://www.company-mood.de/pricing)
the suitability for the use required in the contract,
Further terms and conditions, in particular general terms and conditions of the contracting party are not applicable, even if CompanyMood does not expressly oppose this. Only the terms and conditions of CompanyMood apply.
3. Enhancements / Changes in performance
CompanyMood reserves the right to change and make changes to its performance (for example, by using newer or different technologies, systems, procedures, or standards) as a result of technical progress and performance improvement. In the event of significant changes in performance, CompanyMood will promptly notify the customer accordingly. If any significant disadvantages arise for the customer as a result of changes in service, then the latter is entitled to extraordinary termination of the contract on the date of the change. Termination must be made by the customer within two weeks of receipt of the change of performance notification.
4. System operation
CompanyMood ensures (if necessary through the involvement of subcontractors) that the provided software is operated in an environment and specification suitable for the customer's requirements as well as hardware suitable for the purpose of the customer. These include number and type of servers, regular backups, scalability, power supply, air conditioning, firewalling, virus checking, broadband Internet connection. Delays in deploying the app software are the responsibility of the app stores and can not be claimed against CompanyMood.
CompanyMood performs daily data backups. Through a recovery procedure, CompanyMood can back up customer data since the most recent backup at the customer's request.
5. System availability
The availability of the data center network at the router output on the Internet is 99% annual average. The client-side connection to the Internet is the responsibility of the customer. This is not part of the SaaS scope of services. The downtime is calculated in full minutes and is calculated as the sum of the filtering times per year. Exceptions to this are the periods that CompanyMood identifies as so-called maintenance windows for optimization and performance enhancements, as well as time lost during troubleshooting for reasons beyond the control of CompanyMood and failures due to force majeure.
6. System availability disorders
System availability issues must be reported by the customer as soon as they become known. Before the fault report the customer has to check his area of responsibility. In the case of fault reports received during the support hours, filtering will start within two hours. In the case of fault reports that arrive outside of the support hours, the filtering will start the following working day. Delays in filtering that are the responsibility of the customer (for example, unavailability of a customer contact person) are not counted towards the filtering time.
The obligation to pay results from the software-as-a-service contract. Unless otherwise stipulated, the following applies: For the SaaS services, a monthly fee agreed in the contract is charged. The fee will be charged monthly in advance.
Payments are made by credit card or direct debit. If the payment period is exceeded, services can be restricted in the event of default.
The customer is not entitled to set off against CompanyMood any claims other than principal obligations arising from this contractual relationship, unless they are legally established claims or claims recognized by CompanyMood in writing.
In case of failed credit card or bank debit, CompanyMood is entitled to terminate the contract.
8. Right of use
CompanyMood grants the customer a non-exclusive, non-transferable and non-sublicensable right to use the software and / or apps mentioned in the agreement and the associated user documentation for the duration of the agreement. The software is provided via the Internet via a common browser used by the customer or via one of the two apps developed by CompanyMood (terminal or tracker app). The transfer point for the SaaS services is the router output of the computer center used by CompanyMood to the Internet.
The customer undertakes to use the software and / or the apps exclusively in accordance with the contract and not to pass them on to third parties, nor to make them accessible to third parties in any other way. Customer may not reverse-engineer, decompile, disassemble, duplicate, or use any part of the software and / or the apps to create a separate application.
The customer hereby acknowledges CompanyMood as the sole licensor of the software and / or the apps and the associated copyrights. CompanyMood's rights as the sole licensor also apply to software enhancements provided by CompanyMood to the customer unless otherwise agreed in writing.
Customer hereby acknowledges CompanyMood's brand and name in relation to the software and / or the apps and related documentation. Customer may not remove, modify, or otherwise modify copyright information or other similar proprietary notices in the programs and related documentation.
9. Customer rights to the data
The data collected, processed and generated by the software is stored on the servers of the CompanyMood data center. Customer remains, in any case, the sole owner of the data and, through its access to CompanyMood software, may at any time, but not prior to termination of the contract, download any or all of the data from CompanyMood's computer center without CompanyMood's right of retention. It is not possible to provide the data after the end of the contract because CompanyMood immediately anonymises the data in order to fulfill its data protection obligations. The data is provided in the file formats pdf / xls / csv. The customer is not entitled to receive software suitable for the use of the data. The responsibility for the admissibility of the collection, processing and use of data as well as for the protection of the rights of data subjects (information, use, correction, blocking, deletion) lies with the customer.
The Customer is required to terminate the agreement, but not before CompanyMood has fulfilled its obligations, to return CompanyMood any media with software and to delete all copies of the app on its own computer facilities.
10. Privacy and Data Security
The contracting parties will observe the respective applicable data protection regulations, in particular those applicable in Germany, and oblige their employees employed in connection with the contract and its implementation to the data secrecy according to the General Data Protection Regulation, insofar as these are not already generally obligated.
If the customer collects, processes or uses personal data, he is responsible for ensuring that he is entitled to do so in accordance with the applicable provisions of data protection law, and releases CompanyMood from claims of third parties in the event of a breach.
CompanyMood will only collect and use customer-related data to the extent required by this agreement. The customer agrees to the collection and use of such data to this extent.
The contracting parties undertake to keep secret the knowledge gained in the context of the subject matter, in particular technical or economic data and other knowledge, and to use it exclusively for the purpose of the subject matter of the contract.
This does not apply to information that is publicly available or that has become publicly available without any unauthorized intervention or omission by the parties or that must be made accessible by judicial order or law. In the case of customer support, it may be necessary to access customer records. Access can be via a web meeting with the customer or via database analysis. This access is limited to the period of the respective support action.
12. Reference marketing
After receipt of order by the customer CompanyMood is entitled to communicate this order relationship to the outside. However, details of the contract are not disclosed.
The customer agrees that CompanyMood designates it for its own advertising purposes (reference marketing). This includes the publication of the logo and entry on the CompanyMood website as well as in print and online media and in presentations.
The customer may revoke the consent to the reference marketing by email to email@example.com at any time.
It is not possible in the state of the art to rule out errors in software under all application conditions. CompanyMood warrants, however, that the software and / or the apps mentioned under www.company-mood.de can be used in principle. The period of limitation is except for intent and gross negligence, for damage to life, body and health, one year.
Errors in the software and / or the apps and related documentation will be remedied by CompanyMood within a reasonable time free of charge. Prerequisite for this error correction claim is that the error is reproducible. CompanyMood can either repair or replace it to fulfill its warranty obligation. In particular, CompanyMood may provide the customer with a new version of the software and / or the apps to fulfill the warranty obligation. It is the same for troubleshooting if CompanyMood provides an alternative solution to the malfunction that allows the customer to use it as contracted.
Warranty claims are excluded if the software and / or the apps are not used in accordance with the contract. Furthermore, the warranty claims are excluded if the customer makes changes or enhancements to the software and / or apps mentioned in the contract, unless the customer proves that the faults are not causally related to the changes or enhancements.
If a material bug is not resolved by CompanyMood in accordance with the terms and conditions stated above, the customer may request a reduction in the monthly SaaS fee. CompanyMood has the same right if it is not possible to make the correction with reasonable effort. If, in the course of troubleshooting, it turns out that the problems are due to operator error or improper use by customer, CompanyMood may require reasonable compensation for the expense incurred.
CompanyMood does not warrant the fulfillment of the customer's individual requirements through the software named in the contract. This applies in particular to the failure to achieve the desired economic success. Warranty claims against CompanyMood are exclusive to the immediate customer and can not be assigned.
14. Limitation of liability
In the event of intent or gross negligence, the parties to the contract shall be liable to each other for all damages caused by them and their legal representatives or vicarious agents.
In the event of slight negligence, the contracting parties shall be liable without limitation in the event of injury to life, body or health.
In all other cases, CompanyMood is liable only if it has violated a material contractual obligation. Essential contractual obligations are those duties which are of particular importance for the achievement of the objective of the contract, as well as all those obligations which, in the event of culpable violation, could jeopardize the achievement of the purpose of the contract. In these cases liability is limited to compensation for predictable, typically occurring damage.
For disturbances on telecommunications connections, for disturbances on cable routes within the Internet, in case of force majeure, at the fault of third parties or the customer himself no liability is assumed by CompanyMood. CompanyMood assumes no liability for any damages incurred by the customer when passing passwords or user IDs to unauthorized persons.
15. Force majeure
None of the parties to the contract is required to perform the contractual obligations in the case and for the duration of force majeure. Especially the following circumstances should be considered as force majeure in this sense:
- fire / explosion / floods not responsible for the contractor
- war, mutiny, blockade, embargo
- over 6 weeks of ongoing and non-culpable labor disputes
- technical problems of the Internet that can not be influenced by one contract partner; this does not apply if and to the extent that CompanyMood offers the telecommunication service.
16. Final provisions
Place of fulfillment is Saarbrücken. The place of jurisdiction for both contracting parties is Saarbrücken. It is only the law of the Federal Republic of Germany. The contract, its additions and its changes as well as changes to the form must be in writing.