(Last Modification: 12-01-2015)
§1 §1 Scope, subject matter
(2) With paid acquisition, the CUSTOMER receives the technical option and the authority to access the JustOn software application which is hosted on servers belonging either to the company salesforce.com or belonging to the contractual partners of salesforce.com via telecommunications; and furthermore, the technical option and authority to use JustOn under this agreement.
OBLIGATIONS OF THE PROVIDER
(1) By installing JustOn and concluding the JustOn license agreement, the CUSTOMER is allowed to use JustOn in the contractual scope and for the contractually agreed duration.
(2) The availability of JustOn is subject to the availability of the telecommunication services of salesforce.com, especially the telecommunication services and servers of the company salesforce.com. We can only guarantee the permanent availability of JustOn subject to the availability of the telecommunication services provided by saleforce.com.
(3) Furthermore, the continued availability of JustOn is excluded for:
(a) the performance of scheduled maintenance. In this case, we will notify the CUSTOMER at least 48 hours in advance.
(b) Circumstances for which we are not responsible, in particular those circumstances which are attributable to other applications that the CUSTOMER has with salesforce.com.
(4) We expressly point out that we are not responsible for the quality of Internet access.
§3 Warranty/ Liability
(1) We are constantly striving to improve and expand the functionalities of JustOn and to eliminate faults of JustOn. For this purpose, we provide from time to time software additions and extensions (updates). These updates do not limit the scope of the previously existing functionalities of JustOn. Nevertheless, the CUSTOMER has the option to refuse the installation of updates. However, we point out that our warranty liability in principle refers to the latest version of JustOn and the CUSTOMER’s warranties described below only apply if an error described by the CUSTOMER would also have occurred if the updates that we offer had always been installed. We guarantee the functions of JustOn as described at www.juston.com exclusively in accordance with the following provisions.
(2) If the CUSTOMER receives an error message, we are also obliged as well as entitled to make up to three attempts at fixing this, within a reasonable period. Any fixes can be carried out in the context of telephone support, by means of remote access to the CUSTOMER’S own IT system (with the CUSTOMER’s consent) or by downloading an update. The CUSTOMER can report faults to us during business hours from Monday to Friday from 09:00-18:00 by phone or e-mail. We will endeavor to respond within 48 hours, except weekends and holidays.
(3) If the fault is actually due to an error in the software application for which we are responsible and we have not been able to fix this error despite three attempts, then the CUSTOMER is entitled to a reduction in the agreed price proportionately. The reduction is calculated according to the number of faulty invoices that could not be subsequently fixed as a percentage of the price for the number of invoices actually generated during a contract year. (Reduction = annual price divided by actual number of generated documents x number of permanently faulty documents). The reduction thus calculated is credited to the CUSTOMER for the following year. Insofar as the CUSTOMER has terminated the license agreement within the prescribed period, the amount of reduction will be refunded into the CUSTOMER’s designated account.
(4) Withdrawal from the agreement is excluded.
(5) We will only pay unlimited damages in the event of an intentional breach of duty. In the event of a negligent breach of a material contractual obligation, we will pay compensation in the amount of the foreseeable damage. For an isolated incident, liability is limited to the agreement value; in the case of ongoing payment, liability is limited to the amount of compensation per agreement year. For all other matters, claims for damages are excluded; furthermore, no-fault liability for damages for deficiencies existing at the time of concluding the agreement is excluded.
§4 Data protection and data safety
(1) Both parties will comply with the applicable data protection regulations, especially the ones that prevail in Germany and shall impose an obligation on their employees who are employed in connection with the agreement, unless this obligation has already been generally imposed on them.
(3) We do not collect or process any personal data that the CUSTOMER collects or processes in the context of using JustOn. The storage of such personal data is done on servers by salesforce.com, to which we do not have access. The CUSTOMER is to this extent bound to ensure compliance with the data protection regulations in relation to salesforce.com as the CUSTOMER’S contractual partner and provider of the storage and server capacity.
(4) If the CUSTOMER collects, processes or uses personal data, it is responsible for ensuring that IT is entitled to do under the applicable regulations, in particular the data protection regulations and, in the event of a breach, the CUSTOMER shall indemnify the provider against third-party claims.
(5) For the record: the CUSTOMER both generally on an agreement basis as well as in data protection terms remains “master of the data”. The CUSTOMER is with regard to the right of disposal and ownership of all CUSTOMER specific data (entered data, processed data, stored data, output data) the sole guardian. The provider does not carry out any controls on the data and content stored for the CUSTOMER with respect to legal admissibility of the collection, processing and use; this responsibility falls exclusively to the CUSTOMER. The provider is only entitled to process and/ or use the CUSTOMER specific data exclusively upon the CUSTOMER’s instruction (e.g. obligations to comply with requests for deletion and blocking) and in the context of this agreement; in particular, the provider is prohibited from making CUSTOMER specific data available in any manner to third parties, unless with the prior written consent of the CUSTOMER. This also applies if and when there is a change or addition to CUSTOMER specific data.
(6) We apply the technical and organizational security precautions and measures in the Appendix to the German Federal Data Protection Act.
(7) The CUSTOMER is in principle not entitled to demand access to the premises housing the JustOn software application. This does not affect the access rights of the CUSTOMER’s data protection officer after written notification to check compliance with the requirements in Appendix to the German Federal Data Protection Act and our other legal and contractual handling of personal data in the context of the operation of JustOn under this agreement.
RESPONSIBILITIES OF THE CUSTOMER
§5 Usage right
(1) The CUSTOMER receives a non-exclusive, temporary right for the term of this agreement to access JustOn via telecommunications and use the functionalities associated with JustOn by means of a browser. The actual scope of the functionality is described on our website at www.juston.com. Any further rights, especially to JustOn, the software application or the operating software does not receive the CUSTOMER.
(2) The CUSTOMER is not be entitled to use JustOn beyond the scope permitted pursuant to this agreement, nor is the CUSTOMER entitled to allow third parties to use JustOn, nor make it accessible by third parties. Persons who on behalf of the CUSTOMER and for purposes of the CUSTOMER access Just.On, such as tax consultants, external accountancy services, lawyers, accountants or tax authorities, are not third parties within the meaning of this provision. In particular, the CUSTOMER is not permitted to copy, sell or permit the temporary use of JustOn or parts thereof, especially not to rent or lend it.
(3) For each case where the CUSTOMER is at fault in allowing the temporary use of JustOn by a third party, the CUSTOMER must pay compensation equal to the price that would have been payable for concluding a twelve month agreement in the highest fee tier for an individual user.
(4) The right of the CUSTOMER to demonstrate that no losses or significantly lower losses have been incurred, remains reserved. We have the right to claim further damages.
(5) In the event of unauthorized transfer of use, the CUSTOMER must provide us with all the information required for the assertion of claims against the unauthorized user immediately upon request, in particular the unauthorized user’s name and address.
(6) If the contractual use of Just.On is impaired by the rights of third parties without any fault on our part, we reserve the right to refuse the services thereby affected. We will inform the CUSTOMER of this immediately and allow the CUSTOMER access to the CUSTOMER’S own data in an appropriate manner. In this event, the CUSTOMER is not obliged to pay. Other claims or rights of the CUSTOMER remain unaffected. In this case, both parties are entitled to extraordinary termination without notice.
§6 Contractual use
The CUSTOMER will fulfill its obligations for the contractual performance and execution of this agreement. The CUSTOMER will in particular:
(1) pay the agreed prices on time;
(2) protect the user and login passwords assigned to the CUSTOMER as well as the identification and authentication backups against unauthorized access by third parties and not disclose them to unauthorized third parties;
(3) obtain the required consent from the relevant data subject, insofar as the CUSTOMER collects, processes or uses personal data in the context of using JustOn, in the event that legal permission is not required;
(4) not misuse JustOn or allow it to be misused.;
(5) refrain from attempts for its own part or by an unauthorized third party to illegally retrieve information or data; furthermore, refrains from intervening or arranging for interventions in programs that are operated by the provider and refrains from accessing the provider’s computer networks without authorization;
(6) indemnify the provider against all third party claims which are based on an unlawful use of Just.On by the CUSTOMER or with the CUSTOMER’s consent, and furthermore, to indemnify the provider against in particular data protection, copyright or other legal disputes that are associated with the use of JustOn. If the CUSTOMER finds out or must have found out that such a breach is imminent, then the duty exists to immediately inform the provider;
(7) to take regular and risk-appropriate measures to back up the data transmitted to salesforce.com or the contractual partners of salesforce.com and create the CUSTOMER’s own backup copies to ensure reconstruction in the event of loss of data and information;
(8) to impose in turn on the CUSTOMER’s user who is authorized pursuant to §1 to comply with the relevant provisions for the use of JustOn;
(9) to make backups of the CUSTOMER’s own data files in the system until the time of termination of the agreement.
§7 Non-contractual use of JustOn
(1) In the event of the CUSTOMER breaching one of the essential obligations laid down in this agreement, we are entitled to block access to JustOn, particularly if there is a breach of the obligations mentioned in §§5 (5) and 5 (6). Access is only restored once breach of the relevant essential obligation is permanently eliminated and we are assured that there is no risk of recurrence by submission of a cease-and-desist declaration that makes provision for reasonable penalties. In this case, the CUSTOMER is obliged to pay the monthly charges.
(2) If the number of records generated by JustOn (especially the number of invoices) exceeds the contractually agreed quota by more than 10%, we are entitled to make a charge for this difference according to the currently valid price list.
§8 Terms of payment
(1) Unless otherwise agreed, the monthly prices, beginning from the month in which the contract starts as designated in the agreement, shall fall due in advance on the 1st day of each calendar month.
(2) If no direct debit has been agreed, the invoice amount must be credited to the account indicated on the invoice no later than the tenth working day after receipt of the invoice.
(1) If the CUSTOMER defaults in paying a monthly invoice, then after sending a reminder and setting a deadline, as well as reminding the CUSTOMER at least in text form that the CUSTOMER’s account could be blocked, if the CUSTOMER has not paid the outstanding invoice despite a reminder and a deadline having been set, then we are entitled to block access to Just.On. In this case, the CUSTOMER is obliged to pay the agreed price.
(2) If the CUSTOMER is in default
(a) with payment of the charges over a period of two consecutive months or
(b) with payment of the charges amounting to two months’ charges over a period that exceeds two months,
then we are entitled to terminate the agreement without notice and to demand an immediately payable amount of compensation equal to one third of the monthly fees payable until the soonest date when the agreement can be terminated with notice.
(3) The amount of compensation can be set at a higher or lower amount, if we can prove a higher amount or the CUSTOMER can prove a lower amount. We reserve the right to assert further claims arising from delay in payment.
(4) If we are in default with the operative provision of our services, §3 (5) applies. The CUSTOMER is entitled to withdraw from the agreement only in the event that we do not comply with a reasonable deadline that has been set by the CUSTOMER.
§10 Force majeure
(1) We are exempt from the obligation to perform under this agreement, if and insofar as non-performance is due to the occurrence of force majeure after conclusion of the agreement.
(2) Circumstances of force majeure are deemed to be, e.g. war, strikes, riots, expropriations, cardinal law changes, storm, flooding, regulatory and court decisions and other natural disasters and other circumstances not attributable to us.
(3) Each party shall notify the other party of the occurrence of a case of force majeure without delay and in writing.
§11 Start of the agreement, duration and termination
(1) The minimum term for JustOn is 12 months and begins on the date specified in the agreement.
(2) The contractual relationship can be terminated by either party with a period of 60 days to the end of the agreement year; however, the earliest date when the agreement can be terminated is on expiry of the minimum term.
(3) The right of termination without notice for good cause remains unaffected.
(4) All notices of termination under this agreement must be made at least in text form.
§12 Source code deposit
In order to cover the risks listed in the following paragraph (1), the provider shall at the CUSTOMER’s request deposit the source code of JustOn with an escrow service provider so that if the risk materializes, the source code can be handed over to the CUSTOMER.
Depositing of the source code and the associated claim for a copy of the source code in the event of the conditions identified below and defined in the escrow framework agreement, the following priority applies:
(1) the individual agreements,
(2) this § 12,
(3) the terms laid down in the escrow framework agreement and
If the CUSTOMER opts for the deposit of the source code of Just.On in the CUSTOMER’s favor, the following applies:
(1) once the application to join the Escrow Framework Agreement has been signed, once the escrow joining fee has been received, once the filing fee for the first year of the agreement has been paid and once the escrow service provider has given written confirmation of joining, then the CUSTOMER acquires the immediate right to request that the escrow provider hands over a copy of the most recent version of the Just.On source code that is deposited, under the following circumstances:
(b) the operation of Just.On ceases permanently. Operation of JustOn shall be deemed terminated if despite a written warning and a reasonable time limit, the CUSTOMER is unable to use Just.On dating from the date of the deadline. A reasonable period is deemed to be a period of at least one week. The reminder and setting of a deadline must be in writing and by registered mail in order to ensure there is proof.
(c) The conditions for depositing of the source code, as defined in the escrow agreement signed between the provider and the escrow service, have been met.
(2) Depositing of the source code applies in all instances only to the current version of the source code of JustOn, not to custom extensions and/ or configurations. It is therefore advisable for the CUSTOMER to regularly create backups of the individual, current configuration of the customized version or application environment of JustOn.
(3) The costs of depositing the source code (acquisition costs and filing fees) are due at the time the invoice is issued and are payable on the due date in accordance with the payment terms agreed between the provider and the CUSTOMER.
§13 Final provisions
(1) The CUSTOMER may only transfer the rights and obligations under this agreement to third parties with our prior written consent. We are entitled to transfer the rights and obligations under this agreement to an affiliated company within the meaning of §15 of the German Stock Corporation Act. In this case, we will inform the CUSTOMER in writing. In this case, the CUSTOMER is entitled to terminate the agreement extraordinarily.
(2) The parties undertake to keep confidential business secrets that they or their agents have acquired in the context of the agreement negotiations or contractual performance. These obligations do not apply to information, knowledge and experience that
(a) are demonstrably in the public domain without breach of this confidentiality obligation,
(b) it can be proved that such information, knowledge and experience were already known to the parties before being obtained,
(c) were obtained from a third party that was not under an obligation of confidentiality or
(d) can be proved to have been independently developed.
(3) The contractual relationship is governed by German law. Jurisdiction is the court at the registered office of our company. We reserve the right to sue the CUSTOMER at the CUSTOMER’s place of business.