General terms and conditions of service for Software-as-a-Service (SaaS)
1. Scope of Application and Object of Agreement
The following conditions (hereinafter the “General Terms and Conditions”) are applicable for the use of and for the service support of standard software programs (hereinafter the “Software”), developed by CompanyMood GmbH (hereinafter “CompanyMood”) and provided as a Software-as-a-Service on the Internet.
Object of the agreement are:
the provision of programs under www.company-mood.com for use on the Internet and
the storage of clients' data on the servers in the computing center
Individually developed software programs are not an object of this agreement.
2. Type and Scope of Service
The type and the scope of the mutual services are regulated through contractual arrangements. The services, defined in the contract, are considered as contractually agreed conditions. The standards are:
the defined service scope of the quoted in the contract software, defined in the according user documentation,
the appropriateness regarding the contractual application,
the applicability of the terms and conditions, defined in the contract,
the terms and conditions listed bellow,
the general applicable technical guidelines and regulations, especially the international standards and recommendations of the Internet Engineering Task Force (IETF), documented in the Request-for-comments (RFC), and of the W3C (world Wide web Consortium).
In case of discrepancies the above quoted contractual arrangements apply.
Further terms and conditions, especially general business terms of the contractual counterpart, are not applicable, even without explicit objection on behalf of CompanyMood. Applicable are solely the General Terms and Conditions of CompanyMood GmbH.
3.1. Client Rights Over the Software
For the period of the contract CompanyMood grants the client non-exclusive, non-transferable and non-sublicenzable rights to use the software and the according documentation, quoted in the contract. The software is provided on the Internet. The point of transfer of the SaaS services is the router gateway to the Internet of the computing center, used by CompanyMood. The client is obliged to use the software exclusively in accordance with the contractual conditions and is not allowed to transfer it to third parties or to allow third parties access to it. The client is not allowed to use “reverse-engineering” in order to de-compile, disassemble, to copy or to use part of the software for developing of another separate application.
The client hereby acknowledges CompanyMood as the only grantor of a license of the software and the copyrights related to it. CompanyMood's rights as an only grantor of license apply also to extensions of the software, provided to the client by CompanyMood, unless stated otherwise in an additional written agreement.
The client hereby acknowledges CompanyMood's brand, name and patent rights regarding the software and the related documentation. The client is not allowed to remove, change or modify the copyright information or other similar proprietary notices in the programs or in the related documentation.
3.2. Data related Client Rights
The data gathered, created and processed by the software is stored on the server at the computing center. The client is the only person that has rights over the data and can at any time, especially in case of termination of the contract, require the transfer of particular or of the total data, in which case CompanyMood will not withhold any of it. The transfer of the data will be done electronically through a data network or upon a special agreement by handing over of a data carrier. The client is not entitled to the software, required for processing the data. The client carries the whole responsibility for the admissibility, processing and using of the data, as well as protecting the rights of the concerned parties (providing of information, usage, rights, blocking, erasing).
3.4. Contract Period and Termination
The minimum period of the SaaS service is 1 month. The contract period is automatically continued wit one month in case there is no notice of termination. The termination can be made up to a day before the automatic extension. The amount will be deducted by a direct debit using the latest provided credit card information.
CompanyMood reserves the right to terminate the contract for important reasons, especially in case of unpaid bills due to failed debit transaction.
3.5 Reference Marketing
After order receipt by the customer CompanyMood is entitled to communicate the business relationship für marketing purposes. Details of the contract are not disclosed.
The customer agrees that CompanyMood can use the customer brand for its own advertising purposes (reference marketing). This includes the publication of the logo and mention on the CompanyMood website as well as in print and online media and in presentations.
The customer may revoke the approval for reference marketing by sending an e-mail to email@example.com at any time.
4. Maintenance Terms and Service Level
4.1. Further Developments/Change of Services
CompanyMood reserves the right to optimize the services after conclusion of the contract in accordance with continuous technical progress (for example by application of new or different technologies, systems, methods and standards). In case of significant changes in the services CompanyMood will send the clients a timely notification. In case significant disadvantages for the client arise in result of the change of service they have the right to terminate the contract tot he date of the change. The termination notice should be send by the client within 2 weeks after receiving the notification regarding the change of service.
For every new version of the according software CompanyMood grants the client all the rights quoted in part 3.
4.2. System Operation
CompanyMood guarantees that the provided software is according to the client's requirements, environment and specifications, and is applicable for the hardware used by client for their purposes. That includes number of the servers, regular backups, scalability, power supply, air-conditioning, fire walls, virus checking, broad band Internet connection.
CompanyMood makes daily backups of the database content. Through the recovery procedure CompanyMood can restore the client data upon client's explicit request.
4.3. System Availability
The availability of the network of the computing center at the router output gateway in Internet is annual average of 99%. The connection of the client's side is their own responsibility. It is not subject of the SaaS service scope. The downtime is determined in complete minutes and is calculated out of the sum of the times of fault clearance per year. Exception thereof are the time periods that CompanyMood refers to as maintenance windows for optimizing and service improvement, as well as time spent on fault clearance not caused by CompanyMood and breakdowns caused by force majeure.
4.4. System Availability Downtime
Downtime in the system availability has to be immediately reported by the client. Before reporting the problem the client should prove if it occurred on his side. If the problem report comes in during support working hours the maintenance starts within 2 hours. In case of problem reports out of the support working hours the maintenance begins on the next working day. Delays, caused by the client (e.g. due to unavailability of a contact person on client's side), are not considered part of the time for solving the problem.
Under the current state of technology it is not possible to avoid errors in the software under all application conditions. CompanyMood guarantees though that the software, quoted in www.company-mood.com is in general applicable. The limitation period is one year.
Errors in the software and the associated documentation will be corrected by CompanyMood free of charge and in a timely manner. To be able to do so the error must be reproducible. In accordance with the warranty obligation CompanyMood can weather make improvements or provide an alternative solution. Particularly, in order to comply with the warranty obligations, CompanyMood may provide the client with a newer version of the software. The error is considered corrected as soon as CompanyMood provides an alternative solution for the malfunction that allows the client to use the software in accordance with the contract conditions.
Warranty claims become void in case the software is not used in accordance with the contract conditions. Warranty claims also become void if the client makes modifications on the extensions of the software, quoted in the contract, unless the client can prove that the errors are not related in any way with the applied modifications.
In case a significant program error doesn't get corrected in accordance with the conditions, stated by CompanyMood, the client has the right to request a reduction of the monthly fee for SaaS. The same right has CompanyMood in case the error correction can not be conducted at a reasonable cost. If during the error correction proves out that the problem occurred due to wrong operation or misuse on the client's side, CompanyMood can require a reasonable compensation for the applied effort.
The quoted in the contract software of CompanyMood doesn't guarantee the fulfillment of the personal goals of the client. That applies especially to the not reaching of the desired commercial success. The right to warranty claims towards CompanyMood belongs only to the direct client and can not be transferred.
6.Limitation of Liability
The contractual and tortoise liability of CompanyMood is limited to 500.000EUR in case of personal injuries, 100.000 EUR in case of property damages, material damages and damages on the work in process, as well as 50.000 EUR in case of damages, caused by loss of data, except in cases of deliberate acts and gross negligence. CompanyMood is not liable in case of loss of business profit.
CompanyMood is not liable in case of failure of the telecommunication connections, failure in the Internet network, force majeure, third party fault or actions of the client himself. CompanyMood is not liable for damages, caused by the client's passing passwords or user names to non-entitled parties.
There is a monthly fee for the use of the SaaS services. The due fees are set in advance in an invoice for a certain period of time.
8.Terms of Payment
Payments are covered by a credit card clearing. The provided services might be limited in case the payment period has been exceeded.
The client is not entitled to claims towards CompanyMood, unless the claims there are legally established or officially recognized in written form by CompanyMood.
9. Confidentiality, Data Protection
The parties of this contract agree to keep confidential the gained knowledge, especially technological and economic information, as well as other information, such as personal identification numbers, and to use it only for purposes, relevant to the subject of the contract.
That doesn't apply to publicly accessible information or information that became available to the public in another manner through no action or omission of the contractual partner, or to information that had to be made available to the public due to a court order or a law. In cases of support to solve client's problems might be necessary to gain access to client's data. The access can be gained through a web-meeting with the client or using database analysis. This access is limited only within the time frame of the particular support session.
Regarding the processing of personal data related to the subject of the contract CompanyMood and the client will adhere to the data protection regulations.
In accordance with the German Federal Data Protection Act (BDSG) CompanyMood informs the clients that their data will be saved.
10. Final Provisions
The place of performance is Schwalbach. The sole place of jurisdiction for both parties is Schwalbach. Solely the laws of Federal Republic of Germany shall apply. The contract, it's supplements and amendments, as well as any modifications must be in written form.
Should a clause of the contract be or become ineffective, this shall not affect the validity of the contract as a whole. The contracting parties commit themselves to substitute the ineffective clause with one that most closely reflects the economic intention. The same applies if during the execution of the contract a loophole in it becomes obvious.