General Terms and Conditions of Contract for Software-as-a-Service (SaaS) services
These General Terms and Conditions shall apply exclusively to all contracts which a contractual partner concludes with CompanyMood GmbH for the use and operational support of standard software programmes (the ‘Software’) which are produced by CompanyMood GmbH, hereinafter referred to as CompanyMood, and provided as Software-as-a-Service via the medium of the Internet.
Individually developed software programmes are not the subject of this contract.
The software apps are made available to the customer via the Apple App Store and Google Play. The customer is responsible for installing the apps on the terminal devices. There are differences between the tracker app and the terminal app:
The terminal app (stationary sentiment evaluation on a tablet) is only available in conjunction with a paid business package.
The contract shall be concluded by signature by CompanyMood and the Customer or by CompanyMood confirming an offer to conclude a contract submitted electronically by the Customer via the website
www.companymood.com for the conclusion of a contract.
The type and scope of the mutual services shall be regulated by the contractual agreements. The scope of services defined in the contract shall be deemed to be the agreed quality. Decisive for this are
Further conditions, in particular general terms and conditions of the contractual partner, shall not apply, even if CompanyMood does not expressly object to them. The General Terms and Conditions of CompanyMood shall apply exclusively.
CompanyMood reserves the right to make further developments and service changes (e.g. through the use of newer or other technologies, systems, processes or standards) in the course of technical progress and service optimisation after conclusion of the contract.
CompanyMood shall notify the customer in good time of any significant changes to services. If the customer suffers significant disadvantages as a result of the service changes, the customer shall be entitled to extraordinary cancellation of the contract on the date of the change. The cancellation must be made by the customer within two weeks of receipt of the notification of the service change.
CompanyMood shall ensure (if necessary by involving subcontractors) that the software provided is operated in an environment and configuration suitable for the customer’s requirements and on hardware suitable for the customer’s intended use.
This includes the number and type of servers, regular backups, scalability, power supply, air conditioning, firewalling, virus checking and broadband internet connection. Delays in the provision of the app software are the responsibility of the app stores and cannot be asserted against CompanyMood.
CompanyMood carries out daily backups of the data. Using a restore procedure, CompanyMood can restore the customer data since the last backup carried out at the express request of the customer.
The availability of the data centre network at the router output on the Internet is 99% on an 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 determined in full minutes and is calculated from the sum of the fault clearance times per year.
Excluded from this are those periods which CompanyMood identifies as so-called maintenance windows for optimisation and performance enhancement as well as loss of time during fault rectification due to reasons for which CompanyMood is not responsible and failures due to force majeure.
Disruptions to system availability must be reported by the customer as soon as they become known. The customer must check his area of responsibility before reporting the fault.
In the case of fault reports received during support hours, fault rectification shall begin within two hours. In the case of fault reports received outside support hours, fault rectification shall begin on the following working day.
Delays in fault rectification for which the customer is responsible (e.g. due to the unavailability of a contact person on the customer side) shall not be counted towards the fault rectification time.
The obligation of payment arises from the Software-as-a-Service contract. Unless otherwise stipulated there, the following applies:
A monthly fee agreed in the contract shall be charged for the SaaS services. The fee is invoiced monthly in advance.
Payments are made by credit card or direct debit. If the payment deadline is exceeded, services may be restricted in the event of default.
The customer is not entitled to offset claims against CompanyMood with claims other than main performance obligations arising from this contractual relationship, unless these are legally established claims or claims recognised in writing by CompanyMood.
In the event of failed credit card or bank collections, CompanyMood is entitled to cancel the contract.
CompanyMood grants the customer a non-exclusive, non-transferable and non-sublicensable right for the duration of the contract to use the software specified in the contract and/or the apps and the associated user documentation in accordance with the contract.
The software is made available via the Internet using a standard 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 data centre used by CompanyMood to the Internet.
The customer undertakes to use the software and/or the apps exclusively in accordance with the contract and neither to pass them on to third parties nor to make them accessible to third parties in any other way. The Customer is not authorised to reverse engineer, decompile, disassemble or duplicate the software and/or the apps or to use any part of the software and/or the apps to create a separate application.
The Customer hereby recognises CompanyMood as the sole licensor of the Software and/or the Apps and the associated copyrights. CompanyMood’s rights as sole licensor also apply to extensions of the software provided by CompanyMood to the Customer, unless otherwise agreed in writing.
The Customer hereby recognises CompanyMood’s brand and name in relation to the Software and/or the Apps and the associated copyrights.
The data collected, processed and generated by the software shall be stored on the servers of CompanyMood’s computer centre. The customer remains the sole authorised party to the data in all cases and can download individual or all data from the CompanyMood computer centre at any time by means of his access to the CompanyMood software, in particular after termination of the contract, but only before termination of the same, without CompanyMood having a right of retention.
It is not possible to provide the data after termination of the contract, as CompanyMood anonymises the data immediately in order to fulfil its obligations under data protection law.
The data is made available in the file formats pdf/xls/csv. The customer is not entitled to receive the software suitable for using the data.
The customer is responsible for the permissibility of the collection, processing and use of the data and for safeguarding the rights of the data subjects (information, use, correction, blocking, deletion).
Upon legal termination of the contract, but not before fulfilment of CompanyMood’s obligations, the Customer is obliged to return all data carriers with software to CompanyMood and to delete all copies of the App on his own data processing equipment.
The contracting parties shall observe the applicable data protection provisions, in particular those valid in Germany, and shall oblige their employees deployed in connection with the contract and its implementation to maintain data secrecy in accordance with the General Data Protection Regulation, insofar as they are not already generally obliged to do so.
If the customer collects, processes or uses personal data, he guarantees that he is authorised to do so in accordance with the applicable provisions, in particular those of data protection law, and indemnifies CompanyMood against third-party claims in the event of a breach.
CompanyMood shall only collect and utilise customer-related data to the extent required for the execution of this contract. The customer agrees to the collection and utilisation of such data to this extent.
The contracting parties undertake to keep confidential any knowledge gained in the context of the subject matter of the contract – in particular technical or commercial data and other knowledge – and to use it exclusively for the purposes of the subject matter of the contract.
This does not apply to information that is publicly accessible or becomes publicly accessible without the unauthorised intervention or omission of the contracting parties or must be made accessible by court order or by law.
It may be necessary to access the customer’s data records in the event of support for customer problems. Access can take place via a web meeting with the customer or via database analysis. This access is limited to the period of the respective support measure.
After receipt of the order by the customer, CompanyMood is authorised to communicate this contractual relationship to the outside world. However, it is agreed not to disclose details of the contract.
The customer agrees that CompanyMood may name him for its own advertising purposes (reference marketing). This includes the publication of the logo and naming on the CompanyMood website as well as in print and online media and in presentations.
The customer can revoke consent to reference marketing at any time by sending an email to hello@company-mood.com.
According to the state of the art, it is not possible to exclude errors in software under all application conditions. However, CompanyMood guarantees that the software and/or apps named at www.company-mood.de can be used in principle. The limitation period is one year, except in the case of intent and gross negligence, in the case of damage to life, limb and health.
Errors in the software and/or the apps and the associated documentation shall be rectified by CompanyMood free of charge within a reasonable period of time. The prerequisite for this claim to rectification of errors is that the error is reproducible. To fulfil the warranty obligation, CompanyMood can, at its own discretion, either rectify the defect or supply a replacement. In particular, CompanyMood can provide the customer with a new version of the software and/or the apps to fulfil the warranty obligation. If CompanyMood provides an alternative solution to the faulty function which allows the customer to use the software in accordance with the contract, this shall be equivalent to rectifying the fault.
Warranty claims are excluded if the software and/or the apps are not used in accordance with the contract. Furthermore, warranty claims shall be excluded if the customer carries out modifications or extensions to the software and/or apps specified in the contract, unless the customer proves that the errors are not causally related to the modifications or extensions.
If a significant programme error is not corrected by CompanyMood in accordance with the stated conditions, the customer can demand a reduction in the monthly SaaS fee. CompanyMood has the same right if it is not possible to correct the error with reasonable effort. If, in the course of error correction, it becomes apparent that the problems are due to operating errors or improper use by the customer, CompanyMood can demand appropriate compensation for the costs incurred.
CompanyMood does not guarantee the fulfilment of the customer’s individual requirements by the software specified in the contract. This applies in particular to the non-achievement of the intended economic success. Only the direct customer is entitled to warranty claims against CompanyMood and these cannot be assigned.
The contracting parties shall be liable to each other without limitation in the event of intent or gross negligence for all damage caused by them or their legal representatives or vicarious agents.
In the event of slight negligence, the contractual partners shall be liable without limitation in the event of injury to life, limb or health.
In all other cases, CompanyMood shall only be liable insofar as it has breached an essential contractual obligation. Essential contractual obligations are those obligations which are of particular importance for the achievement of the contractual objective, as well as all those obligations which, in the event of a culpable breach, could lead to the achievement of the contractual purpose being jeopardised. In these cases, liability is limited to compensation for foreseeable, typically occurring damage.
CompanyMood accepts no liability for disruptions to telecommunication connections, for disruptions to lines within the Internet, in the event of force majeure, in the event of fault on the part of third parties or the customer himself. CompanyMood accepts no liability for damages which arise if the customer passes on passwords or user IDs to unauthorised persons.
Neither party shall be obliged to fulfil its contractual obligations in the event of and for the duration of force majeure. The following circumstances in particular are to be regarded as force majeure in this sense:
The place of fulfilment is Saarbrücken. The place of jurisdiction for both contracting parties is Saarbrücken. The law of the Federal Republic of Germany shall apply exclusively. The contract, its additions and amendments as well as changes to the form must be made in writing.
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Made with love in Germany
© 2024 CompanyMood.
All rights reserved.
