Software as a Service Contract
onOffice GmbH
Charlottenburger Allee 5
52068 Aachen
Germany
onOffice GmbH, hereinafter referred to as “Provider”
“Customer” and “Provider” jointly hereinafter referred to as “Parties”
PREAMBLE
The Provider develops and distributes efficient management and marketing software for real estate agents. In addition, the Provider offers a cloud-based software that can be accessed via log-in Software (“Software as a Service”). Should the Customer acquire a license for the cloud-based software’s rental use, the following Agreement regulates the terms and conditions of the acquisition of the license and the scope of the permitted usage.
§ 1 Scope of Application
(1) All deliveries and services of the Provider made available to the Customer within the scope of Software as a Service (hereinafter “SaaS”) are exclusively based on this agreement. Unless expressly agreed in writing, deviating terms and conditions shall not apply.
(2) Notwithstanding the regulations in paragraph 1, the Provider may provide services to which additional special conditions and specific regulations may apply. If these services are offered, these additional terms are attached accordingly and become part of the agreement.
(3) The Customer assures that it is a business entity. For the purposes of this agreement, a business entity is a natural or legal person or a partnership with legal capacity, which acts in the exercise of its commercial or independent professional activity when concluding the agreement with the Provider.
(4) Our General Terms and Conditions of Business apply, as this Software-as-a-Service Agreement Terms of Use do not contain any special regulations.
§ 2 Subject Matter of the Contract – SaaS Services –
(1) Subject Matter of the Contract is
- the rental provision of software by the Provider for use by the Customer over the internet. The software subject to the contract and the corresponding prices are defined in the offer and product portfolio.
- the provision of computing power and storage space by the Provider for the storage of data in accordance with the offer and product portfolio.
– together hereinafter referred to as “Performance subjects” –
(2) The creation and maintenance of the data connection between the transfer point defined under § 3 Paragraph 3 and the Customer’s IT systems are not subject to performance. The Customer is solely responsible for the functionality of its internet access, including the transmission paths and its computers (required hardware and software).
(3) The source code of the software is also not subject to performance.
§ 3 Provision of Software
(1) The software is provided to the Customer for the duration of this contract in its current version via the internet for a fee. For this purpose, the Provider makes the software available on a server for retrieval. Retrieval occurs via the internet using a currently common browser or another suitable application (e.g., app).
(2) The functionality description in the offer and product portfolio is solely decisive for the quality of the software.
(3) The transfer point for the software is the point at which the data leaves the data center.
(4) During the contract period, the Provider will adjust the Performance subjects as necessary to relevant market technical changes. However, the Customer has no claim to specific improvements.
§ 4 Provision of Storage Space
(1) The Provider shall provide the Customer with storage capacity on a server for data storage. The Customer can store data up to the extent specified in the technical specifications, which are documented in the offer and product portfolio. If the storage space is no longer sufficient to store the data, the Provider will notify the Customer. Subject to availability, the Customer can expand the storage space for a fee. Die The Customer can request the conditions from the Provider. In the event of non-contractual use of the storage space or disproportionate use of the storage space (from more than 100 GB per user), the Provider reserves the right to terminate a storage quota or a storage flat rate. Before termination, the Customer will receive a warning and will have four weeks to reduce the storage.
(2) The Provider ensures that the stored data is accessible via the internet. However, the Provider is not obliged to guarantee uninterrupted accessibility.
(3) The Provider is obliged to take customary precautions against data loss and to prevent unauthorized third-party access to the Customer’s data. For this purpose, the Provider regularly creates a security backup of the Customer’s data. The security precautions are described in the Technical and Organizational Measures (TOM), which are part of the Data Processing Agreement.
In the event of a data loss, the Customer must notify the Provider immediately. In the event of data loss, the Provider will restore the most recent backup. If the Customer is responsible for the data loss, the Customer is obliged to compensate the Provider for the incurred expenses.
§ 5 Support
(1) The Provider offers support services in conjunction with the software. The scope of the support services is determined by the description of the selected service package in the offer and product portfolio.
(2) Additionally, the Provider guarantees 30 minutes of phone support per month according to the service times regulated in paragraph 3. The Customer cannot carry unused support time to the subsequent months.The Customer can arrange additional support packages after an individual consultation with the sales department.
(3) The Provider’s Support line is available Monday through Friday from 9:00 to 18:00 to assist with reports of malfunctions, solve simple disturbances and provide support for questions regarding the ongoing operation of the Software. On weekdays between 18:00 and 24:00 and 00:00 to 09:00, as well as on holidays, an emergency hotline is available, charged at € 5.95 net per commenced 5-minute block.
§ 6 Access of Users
(1) After the commencement of the contract, the Customer will receive the access data for the administration access of the software from the Provider.
(2) The Customer can create users within the software. Only natural persons using their real names may be registered as users. The Customer will verify the identity of the users and document their user data in a register of their registered users (“named users”) along with the respective access code.
(3) The Software may only be used by the number of employees specified in the offer/contract. Alternatively, the Customer can place additional orders through the Software’s shopping center (Marketplace). Every license is assigned to a specific employee and may only be used by that employee. It is not permitted to distribute a license to more than one employee. Only in justified cases (such as an employee’s departure, extended vacation, or extended illness) may licenses be transferred to another employee, in which case the previous employee loses their license. The Customer should document the change of the user data in the directory of registered users.
§ 7 Usage Rights to the Software
(1) The Customer is granted a non-exclusive, non-transferable right, limited to the term of this Agreement, to access the Software via the web and use the Software as intended.
(2) The software may only be used by a specified number of designated users at the Customer’s premises (“named user”). The number of authorized users is specified in the offer.
(3) The Customer is not permitted to use or have the Software used by third parties beyond the rights granted to them in the preceding paragraphs. Subcontractors of the Customer who use the services free of charge are defined as third parties, as will be employees of the Customer, freelancers within the scope of the contractual relationship, etc. Use is only permitted within the Customer’s own business operations. In particular, the Customer is not permitted to reproduce or exploit the software or parts thereof, whether by sale, rental, or other means of exploitation.
(4) The Customer grants the Provider the necessary usage rights to the data transmitted to the provided storage space in connection with the use of the software for the execution of the contract. This includes the right to make the Customer’s data accessible over the internet upon request, to reproduce and transmit it for this purpose, and to reproduce it for data backup purpose. The Customer remains the sole owner of these data in any case and can export them at any time as a CSV file from the software (download), without any right of retention on the part of the Provider. In particular, after the termination of the contract, the Customer may request the deletion of all data or order a backup to meet their business’s deadlines. In addition, the Customer can request the Terms from the Provider. The Customer is not entitled to Software for further use.
§ 8 Interruption of Availability
(1) Adjustments, changes, and additions to the subjects of performance as well as measures that serve to determine and remedy malfunctions will only lead to a temporary interruption of accessibility if this is necessary for technical reasons. Planned and announced maintenance work does not count as downtime. The Provider will endeavor to give at least 7 days’ notice of any maintenance work.
(2) The Provider shall endeavor to ensure a high availability of the Performance subjects. However, there is no specific claim to a minimum level of availability.
§ 9 Obligations of the Customer
(1) The Customer undertakes not to store any data on the provided storage space that violates laws, regulatory requirements, or the rights of third parties. If the Customer becomes aware of any such violation, they must immediately inform the Provider and cease the violation. The Customer will indemnify the Provider from all third-party claims upon first request in this regard.
(2) The Customer agrees not to store any data on the available storage space that would offend common decency or unreasonably use the Software. In particular, any use which is politically, ideologically, or religiously extreme, xenophobic, discriminatory (e.g., sexist), contrary to good taste, or against the interests of the Provider or their contractual partners is unacceptable.
(3) The Customer is obliged to check their files for viruses or other harmful components before uploading them to the storage space provided and to use state-of-the-art virus protection programs for this purpose. There is no obligation for the Provider to check.
(4) The Customer must refrain from attempting to retrieve information or data unauthorizedly or from interfering with or allowing unauthorized interference with programs operated by the Provider or from unauthorizedly accessing the Provider’s data networks.
(5) The Customer agrees not to abuse the possibility to exchange electronic messages by sending unsolicited messages or information to third parties for promotional purposes (spam).
(6) The Provider shall provide a spam filter for incoming mails. However, the Customer is expected to check their own mailboxes in the onOffice Software for spam and sort any incorrectly sorted spam mail themselves. To reduce server workloads, emails in the “Spam” folder are automatically deleted after seven days, and emails in the “Trash” folder after 30 days.
(7) The Customer is obliged to prevent unauthorized access by third parties to the protected areas of the software by taking appropriate precautions.
(8) The Customer is obliged to keep their access data confidential and not to make it accessible to third parties.
(9) The data stored by the Customer on the provided storage space may be protected by copyright and data protection laws. Therefore, the Customer must adhere to all industrial property rights and copyrights. In particular, the Customer grants the Provider the right to make the contents stored on the server accessible via the web in the event of queries and reproduce them for data backup.
(10) As part of this Agreement, the Customer shall require its users to comply with all rules and obligations related to the use of the subject matter of the services provided.
(11) Notwithstanding the Provider’s obligation to back up data, the Customer is responsible for entering and maintaining the data required to use the ubject matter of the services.
(12) During the contract term, the Customer must ensure the technical requirements for the use of the subjects of performance. Failure to do so may result in malfunction, for which the Provider is not liable. This pertains to the following, but not exclusively:
- Sufficient bandwidth and Quality-of-Service, both in the Customer’s local network and on the Customer’s network operator’s line
- VPN-capable routers
Further technical requirements may be separately disclosed to the Customer before the conclusion of the contract.
(13) In the event of disruptions, malfunctions, or impairments of the objects of performance, the Customer is obliged to inform the Provider immediately and as precisely as possible. If the Customer fails to give such notice, § 536c BGB (German civil code) shall be applied accordingly. Furthermore, should the Provider require access from the Customer via remote maintenance to remedy the disruption, the Customer is obliged to grant the Provider such access.
(14) If, after reporting a disruption (within the service description from the offer and product portfolio), it turns out that there was no disruption of the technical facilities on the Provider’s side and the Customer could have recognized this with reasonable error detection, the Customer undertakes to reimburse the Provider for the expenses incurred due to the inspection.
(15) The Customer independently verifies the successful transmission when using portal interfaces (such as ImmobilienScout24, Immonet, Immowelt, etc.) within the software. The Provider does not guarantee transmission or exclude transmission errors.
(16) The Customer must consent to the Data Processing Agreement (DPA). For this purpose, the Provider shall send the Customer a draft of the DPA, which the Customer must sign and return to the Provider.
§ 10 Violation of the Contract
(1) For each instance in which the Customer culpably enables the use of the Software by third parties or by users that the Customer did not name, the Customer is obliged to pay a contractual penalty that is due immediately. The contractual penalty will be determined at the Provider’s discretion. However, the applicable court has the power to review the penalty in dispute. The contractual penalty shall be offset against any possible damages claims.
(2) In the event of an unauthorized transfer of usage, the Customer must provide the Provider with all information necessary for asserting claims against the user. In particular, the name and address of the user.
(3) In the event of an unlawful breach by the Customer or the users designated by the Customer to any of the material obligations set forth in this Agreement, in particular the obligations specified in § 9.1 to § 9.7, the Provider is entitled to block the Customer’s access to the Software and to their data. The Provider shall not restore access until the breach of the material obligation has been permanently remedied or the risk of repetition has been eliminated by submitting an appropriate declaration to cease and desist to the Provider. Nonetheless, the Customer remains obliged to pay the monthly prices.
(4) In the event of a breach of § 9.1 to § 9.3, the Provider is entitled to delete the data affected.
(5) In the event of an unlawful breach of the obligations stipulated in § 9.1 to § 9.7 by a user, the Customer shall, upon request, immediately provide the Provider with all information required to assert claims against the user, in particular the name and address of the user.
§ 11 Fees
(1) The fee is calculated in monthly installments and is due in advance on the 1st working day of each month. The fee is payable beginning with the month in which the operational availability takes place. Default occurs 14 days after the due date without the need for a reminder. The Customer shall authorize the Provider to collect the monthly installment, the setup fee, and all other fees by SEPA direct debit and ensure the necessary coverage of their bank account. For each SEPA direct debit not honored or returned, the Customer shall reimburse the Provider for the costs incurred to the extent the Customer is responsible for. To fulfill this requirement, the Customer shall provide credit card data at the beginning of the contract and notify any subsequent changes.
(2) The monthly fee is specified in the offer. The calculation of the fee is mainly based on the number of users, the duration of the contract, the service, and other items specified in the offer and product portfolio.
(3) In addition to the monthly fee, a one-time setup fee may be charged, which is due at the beginning of the contract term. The amount of the one-time setup fee, and the exact scope of services, can be found in the offer and product portfolio.
(4) Any other fees are due no later than upon the provision of the service.
(5) Invoicing is done exclusively in electronic form via email to the email address provided by the Customer to the Provider. Parallel mailing of the invoice in paper form will only occur upon the customer’s express request and will be charged a handling fee of €2.00 per invoice.
(6) Only with the prior written consent of the Provider is the Customer authorized to use the subjects of performance beyond the scope agreed in the offer and product portfolio. An additional use without consent is grounds for the Provider to charge additional fees based on the rates agreed in the offer and product portfolio.
(7) All prices are in euros plus the applicable statutory value-added tax at the time of service provision.
(8) The provider is entitled to increase the usual or listed prices for the contractual services once a year with three months’ written notice to compensate for inflation or increased costs, but not earlier than 12 months after the contract is concluded. The customer has the right to terminate the rental agreement within six weeks of receiving the notice of increase if the increase exceeds 10%; if the customer exercises this right of termination, the non-increased prices will be charged until the termination becomes effective.
§ 12 Delay
(1) If the Customer is in default with the payment of the agreed fee or installment or a non-insignificant part of the payment for two consecutive months, all payments until the next possible ordinary termination date shall become due for immediate payment. In this case, the Provider is entitled to block the Customer’s access to the Software and their data. However, before the Provider blocks the Customer’s access to the Software and the Customer’s data due to default of payment, the Provider shall notify the Customer thereof in the form of a system message and set a reasonable deadline for the Customer to settle the Provider’s outstanding claims.
(2) The Provider reserves the right to assert further claims due to default of payment.
(3) If the Provider is in default with the operational provision of services, liability is be governed by § 13. The Customer is only entitled to withdraw from the contract if the Provider fails to meet with a reasonable deadline or period of time set by the Customer. This deadline or period of time must be of at least two weeks.
§ 13 Warranty and Liability
(1) In accordance with the rules of tenancy law, the Provider warrants the agreed quality of the objects of performance.
(2) If the contractual use of the software is impaired by the property rights of third parties through no fault of the Provider, the Provider shall be entitled to refuse the services affected thereby. The Provider shall inform the Customer thereof without undue delay and allow the Customer access to their data. In this case, the Customer is not obliged to pay. Other rights or claims of the Customer remain unaffected.
(3) Defects of the software, including the online help and other documents, shall be remedied by the Provider within a reasonable period of time after the Customer has notified the Provider of the defect. The same applies to other disruptions in the ability to use the software. Defect claims shall be governed by the law on defects as set forth in the rental agreement. The Provider is to remedy the defects provided that the Customer is not in arrears with the payment of their installment.
(4) The Customer’s right to terminate the contract for failure to provide use in accordance with Section 543 paragraph (2) Sentence 1 No. 1 of the German Civil Code is excluded, unless the agreed use is regarded to have failed.
(5) Information on the properties of the objects of performance, technical data, and specifications in the quotation and product portfolio or the service descriptions and other documents relevant to the contract serve solely to describe the respective service. They are not to be regarded as a guarantee (or warranted quality) within the meaning of the German Civil Code. No guarantee promises are made by the Provider.
(6) In all cases of contractual and non-contractual liability, the Provider shall compensate for damages exclusively as follows:
a) Unlimited in cases of intent and gross negligence;
b) In cases of slight negligence, only for breaches of essential contractual obligations in the amount of the contractually typical foreseeable damage.
Any further liability is excluded.
(7) The non-culpable liability of the Provider according to §536a paragraph 1, 1. alternatively, BGB (German civil code) due to existing defects at the time of the conclusion of the contract is excluded.
(8) Liability for loss of data shall be limited to the standard recovery costs that would have occurred if the Customer had made backup copies on a regular basis and in accordance with the risks involved unless the requirements of § 13 (5) apply.
(9) The limitations of liability also apply to the personal liability of the employees, representatives, and organs of the Provider.
(10) Minor errors are considered acceptable for the Customer. In this case, there are no claims against the Provider. A minor error exists, in particular, if it is based on the use of unsuitable hardware or software by the customer or their internet provider, if the error does not significantly impair the contractual purpose, in cases of force majeure, computer failure due to system failure or line failure, network disruptions, or failure of the used server for no longer than 24 hours within 30 days. The limitations of liability according to the above clauses do not apply in the case of liability for physical injury and liability under the Product Liability Act.
(11) Claims of the Customer for warranty and liability deriving from this contract expire 12 months after the due date and possible knowledge of the claim. This does not apply in the cases of intent or gross negligence, physical injury, non-fulfillment of independent guarantees or fraudulent intent on the side of the Provider. The term begins on the last day of the month in which the claim arose, and the Provider became aware of the entitlement.
(12) The Provider shall activate a spam detection for outgoing mails, which shall ensure that the onOffice software is not misused for sending spam emails. In this regard, the Customer will receive a corresponding notice. This is to ensure the improvement and the reputation of the mail system for automatically generated emails from the onOffice server.
§ 14 Transfer of Rights And Obligations Under This Agreement
The customer may transfer the rights and obligations under this contract to third parties only with the prior written consent of the provider. The provider is entitled to transfer the rights and obligations under this contract to a group company within the meaning of § 15 of the German Stock Corporation Act.
§ 15 Confidentiality
The contracting parties hereby agree to treat any trade and business secrets obtained by them – including their vicarious agents – on the basis of contract inducement or contract fulfillment as strictly confidential. These obligations shall not apply to information, knowledge, and experience which
- demonstrably known to the public without breach of this confidentiality obligation,
- were already demonstrably known to the parties before they received the information, knowledge, and experience,
- were received from a third party without any obligation of confidentiality, or
- have been demonstrably developed independently.
§ 16 Force Majeure
(1) The Provider shall be released from the obligation to perform as per the contract if the disruption of performance is due to events of force majeure occurring after the conclusion of the contract.
(2) Circumstances of force majeure include, for example, war, strikes, riots or turmoil, expropriations, substantial changes in law, storms, floods, pandemics, and other natural disasters, as well as other circumstances for which the Provider is not responsible. These include, in particular, water ingress, power blackout, and interruptions or the destruction of data-carrying lines or infrastructure.
(3) Each contractual party must inform the other party of the occurrence of a case of force majeure immediately and in written form.
§ 17 Terms and Termination
(1) The start of the contract and, if applicable, the minimum terms are stated in the offer. The contract is automatically prolonged (after the expiry of the minimum contract period) for 12 months and can be terminated by either party with a notice period of three months (for the first time at the end of the minimum term).
(2) The contractual relationship can be terminated by both parties at the earliest at the end of the minimum term. Notice of termination must be received by the contracting party in writing at least 3 months before the expiry of the minimum term. If the contractual relationship is not terminated by any of the contracting parties, the contractual relationship shall be automatically prolonged by 12 months in each case. The regulation in sentence 2 shall then apply mutatis mutandis to the termination of the respective subsequent 12-month contract periods. The right of the parties to extraordinary termination for good cause remains unaffected.
Good cause for extraordinary termination exists, in particular, if,
- the other party repeatedly breaches material contractual obligations arising from this contract; material contractual obligations include, in particular, the timely payment of fees
- the other party commits a tortious act in connection with this contract.
(3) Notice of termination must be given in writing.
(4) With the termination of the contract, for whatever reason, the customer’s contractual usage rights end.
(5) The Customer may demand the return of the stored data in a common digital format from the Provider up to one month after termination of the contract. Depending on the requirements, a separate offer for data backup is needed here (prices are available on request from the current price list). After the expiration of the one-month period, all data including all mailboxes will be permanently deleted without further notice.
§ 18 Miscellaneous
(1) This contract is exclusively subject to German law, excluding international private law.
(2) Jurisdiction lies with the court in Aachen. Aachen shall be the exclusive court having jurisdiction for any disputes arising from this contract.
(3) All agreements which contain an amendment, supplement, or concretization of these contractual conditions, as well as special assurances and agreements, must be recorded in writing. This also applies to the amendment of the written form requirement itself. If they are proclaimed by the Provider’s representatives or auxiliary people, they are only legally enforceable if the Provider consents in writing.
(4) Should any clause of this contract be or become invalid, this shall not affect the validity of the remainder of the contract. The invalid clause shall be replaced by a valid clause, which has effects that come as close as possible to the objective pursued by the contracting parties with the invalid clause.
Contact Information
For questions, please contact the following address:
onOffice GmbH
Charlottenburger Allee 5
52068 Aachen
Tel. +49 (0)241 44 686-0
Fax.+49 (0)241 44 686-250
www.onOffice.com
For questions regarding data protection:
Email: m.menne@onOffice.de