General Terms and conditions
A. General regulations
1. Scope of application
1.1 These General Terms and Conditions of business (hereinafter referred to as “GTC”) apply exclusively to the temporary provision of the software “LOOMEO” of Redpoint.Teseon AG (hereinafter referred to as “Contractor”) to its clients, who are to be regarded as entrepreneurs in accordance with § 14 BGB of the German Civil Code (hereinafter referred to as “Customer”).
1.2 The Contractor offers Customers the utilization of the LOOMEO software for tasks in the field of business analytics.
1.3 Any terms and conditions of business of the Customer that contradict, supplement or deviate from these general terms and conditions will only become part of the contract if and insofar as the Contractor has expressly agreed to their validity. This requirement of consent shall also apply if the Contractor executes deliveries and services without reservation, accepts payments without objection or remains silent on a declaration of inclusion by the Customer.
1.4 The Contractor reserves the right to change these terms and conditions at any time. The Customer will be informed in writing about the changes four weeks before they come into effect. As part of this information, the Customer will be informed of the new GTC. The Customer is entitled to object to the validity of the new GTC within four weeks after receipt of the notification. If the Customer fails to object, the amended GTC will become part of the contract after the four-week period has expired. The Contractor shall expressly draw the Customer’s attention to this period in the notification of change.
1.5 Individual agreements made in individual cases between Customer and Contractor (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. The content of such individual agreements shall be governed by a written contract or a written confirmation by the Contractor.
2. Offer and subject of contract
2.1 The subject of the contract is always based on the offer or contract documents prepared by the Contractor and accepted by the Customer (hereinafter “Offer”). In the event of contradictions between the offer (including any attachments) and the GTC, the offer takes precedence. Other documents referenced in these GTC shall be applied on a subordinate basis.
2.2 Unless expressly stated otherwise in the offer, the binding period of offers shall be thirty (30) days from the date of issue stated in the offer, irrespective of receipt of the offer.
2.3 The information contained in the offer and in the documents named therein as attachments for determining the contractually owed properties, functions and/or quality features of the service (hereinafter referred to as “offer documents”) shall be examined by the Customer with regard to their suitability both for the planned use of the Customer and for normal use.
2.4 There are no separate offer documents for software products offered in the webshop. Prior to placing an order in the webshop, the Customer shall ensure that the properties, functions and/or quality features of the software are suitable for the Customer’s intended use by checking the product information provided on the website and by testing the free trial version.
2.5 When purchasing a software product in the webshop, the Customer agrees to be bound by this agreement by clicking on the “I agree” (or similar button or check box) displayed at the time of ordering or by using or accessing the software. If Customer does not agree to be bound by this agreement, Customer may not use or access the Software.
3. Prices and terms of payment
3.1 The Customer is obliged to pay a corresponding remuneration for the provision of the software plus the applicable value added tax as described in the offer (hereinafter “Subscription fee”).
3.2 Invoices are issued in advance on a yearly basis from the beginning of the contract term (hereinafter referred to as the “Contract year”), unless otherwise specified in the offer.
3.3 Invoices are due for payment within 30 days of the invoice date. The date of receipt of the invoice amount in the account specified in the invoice is decisive.
3.4 Upon expiry of the payment period, the Customer shall be in default without the need for a reminder. During the period of default, interest shall be charged on the invoice amount at the statutory default interest rate applicable at the time. The Contractor’s assertion of further damages caused by default as well as the lump sum according to § 288 para. 5 BGB of the Ger-man Civil Code by the Contractor remain unaffected.
3.5 The Contractor shall notify the Customer of price changes at least three (3) months before the end of the contractual year in writing or in text form. In the event of a price increase, the Customer shall be entitled to object to the price increase at least in text form within four (4) weeks after receipt of the notification. Unless the Customer objects, the new prices shall apply for the new contractual year and the following years until any further price changes. If the Customer objects, the Contractor shall be entitled to terminate the contractual relationship with the Customer with a notice period of four (4) weeks to the end of the contractual year.
4. Confidentiality and data protection
4.1 “Confidential information” shall mean all information and documents of the respective other party which are marked as confidential or are to be regarded as confidential from the circumstances, in particular business secrets and information about know-how, operational processes etc.
4.2 The parties shall maintain secrecy about such confidential information and shall protect such confidential information with due diligence against disclosure to unauthorized third parties. Third parties within the meaning of this provision are not employees of the Contractor.
4.3 Confidential information within the meaning of Section 4.1 shall not be deemed to be such information,
a) which were demonstrably already known to the recipient at the time of conclusion of the contract or subsequently become known to him by a third party, without this infringing a confidentiality agreement, statutory regulations or official orders;
b) which are publicly known at the time of the conclusion of the contract or are made publicly known thereafter, without this being based on a violation of section 4;
c) which must be disclosed due to legal obligations or by order of a court or an authority. To the extent permissible and possible, the recipient obliged to disclose shall inform the other party in advance and give it the opportunity to take action against disclosure.
4.4 These obligations exist during the term of the agreement and for a period of 3 years after termination of the agreement.
4.5 The Customer shall be responsible for compliance with all data protection regulations for the processing of personal data and shall ensure that these are also complied with if the Contractor accesses the Custom-er’s IT systems. If necessary, the parties shall conclude a contract for order processing in accordance with Art. 28 of the German general data protection regulation (DSGVO).
4.6 Insofar as this is absolutely necessary for the contractual provision of the services, the Contractor is entitled to pass on information about the Customer to subcontractors that he has subcontracted for the fulfilment of the contract. The Contractor agrees to use this information exclusively for the technical implementation of the agreed services and to oblige the sub-contractor to the same extent to maintain confidentiality.
5.1 Contractor will use Customer’s contact information to send transaction-related communications by email and within the services, such as purchase confirmations, reminders of expiring subscriptions, responses to comments, questions and inquiries, provision of Customer support and technical information, updates, security alerts and administrative messages.
5.2 Contractor will send e-mail notifications to Customer when Customer interacts with Contractor or other parties within the services, for example, when Custom-er is mentioned on a page or ticket via @mention or when Customer is assigned a task.
5.3 Contractor provides individual notifications based on Customer’s activities and interactions with Contractor. For example, certain actions that the Customer performs in the services may automatically trigger a recommendation for a feature or third-party app within the services that would make the task easier.
6.1 Claims of the Customer for compensation for dam-ages or expenses as well as compensation for indirect damages are excluded, unless they are due to intent or gross negligence on the part of the Contractor, his legal representatives, executive employees or other vicarious agents.
6.2 This limitation of liability shall not apply in the event of injury to life, body or health, in the event of malicious action, the assumption of a guarantee, the absence of a warranted characteristic, the breach of a material contractual obligation and in cases where the Contractor is subject to mandatory liability (e.g. under the Product Liability Act).
6.3 The liability of the Contractor for negligently neglected property damage and financial loss due to the violation of an essential contractual obligation is limited to the damage foreseeable and typical for the contract at the time of conclusion of the contract. Essential contractual obligations are those whose fulfilment characterises the contract and on which the Customer may rely.
6.4 The Contractor’s liability in the event of data loss is limited to the costs of recovery that would have been incurred if the Customer had made a data backup in accordance with his duties. The liability of the Contractor for initial defects according to § 536a BGB of the German Civil Code is excluded.
7. Term and termination
7.1 The Contractor shall provide the agreed services for a minimum contract period of one (1) year from the time the software is made available, unless the offer contains a different provision. Subsequently, the term of the contract shall be extended by one (1) year un-less one party terminates the contract in whole or in part in writing at least three (3) months before the end of the term.
7.2 Support and maintenance services are part of the contractually owed services, so that they can only be terminated together with the main contract.
7.3 Notices of termination must be made in writing via the help desk in the case of SaaS use or in writing by registered letter in the case of on-premise use.
7.4 The Contractor can terminate the contract if the client violates essential obligations from this contract, in particular the following provisions on rights of use, and has not remedied this violation within thirty (30) days after a warning from the Contractor.
7.5 The Customer’s right to terminate the rental contract without notice if the Customer is not granted or withdrawn the contractual use of the rental goods in whole or in part in due time (§ 543 para. 2 sentence 1 no. 1 BGB of the German Civil Code) is excluded. Exception: The software has technical problems and no solution was offered within 30 days. In this case a termination without notice would be possible and the subscription fee would be refunded proportionally, if the customer does not want to wait for a later upgrade.
B. Transfer of Software
1. Services of the Contractor
1.1 For the duration of the contract, the Contractor will provide the client with one or more software applications from the LOOMEO program package (hereinafter jointly referred to as “software”). The functionality of the software is described in detail in the offer.
1.2 In the case of SaaS use, the software is made available by the client receiving an access code by e-mail with which he can access the application via a web browser. In the case of on-premise use, the software is made available online as an archive for download or transmitted electronically. The customer is responsible for the installation and commissioning of the software, unless otherwise specified in the offer. In addition to the software, the Contractor shall provide the Customer with installation instructions and a user manual (hereinafter “Documentation”).
2. Customer’s rights of use
2.1 Upon full payment of the subscription fee, Contractor grants Customer the non-exclusive right, limited to the term of the agreement, to make the software avail-able to the circle of users agreed in the offer. Unless otherwise stated in the offer, all users registered by name in the user administration of the software are deemed to be users (so-called named user principle). In the case of an on-premise use, the customer may operate a copy of the software on a single server for productive use. He is entitled to install a second copy exclusively for test purposes. This right of use is granted to the customer in the sense of §§ 15 ff of the German Stock Corporation Act (AktG). This right of use is transferable or sublicensable to affiliated companies of the customer within the meaning of §§ 15 ff.; otherwise transferability/sublicensability is excluded.
2.2 The Contractor’s software is protected by copyright. All copyrighted protection and exploitation rights belong exclusively to the Contractor. The Customer shall not remove alphanumeric identifiers, trademarks and copyright notices.
2.3 The customer will use the software only for his internal company purposes. He may not rent, lend, sell, sublicense, give, assign or transfer the software itself or the rights to the software to third parties, nor may he copy or authorize the copying of the software, neither in part nor as a whole, except in the cases expressly permitted here.
2.4 If the software is provided to the customer for test purposes, the customer’s rights of use shall be limited to such acts which serve to determine the condition of the software and its suitability for operation at the customer’s premises. In particular, productive operation of the software or preparation for productive operation is not permitted.
2.5 The Customer shall not make the software available to third parties without the prior written consent of the Contractor. There is no right to this.
2.6 Any supplementary program code (e.g. patch, up-date) made available to the Customer for the purpose of error correction or within the scope of software maintenance and support shall be regarded as a component of the respective software made available and shall be subject to the terms and conditions of these GTC, unless otherwise agreed.
2.7 In all cases in which the customer’s rights of use end, existing copies of the software must either be destroyed by the customer against proof or returned to the Contractor. The customer is obliged to completely and permanently delete all installed program copies and any stored documentation from all his servers. In the event of a permitted transfer of the soft-ware to affiliated companies or third parties, Customer shall assure Contractor in writing of compliance with these obligations by all parties involved. Statutory storage obligations shall remain unaffected by this.
3. Customer’s obligations to cooperate in the event of on-premise use
3.1 The provision of the software is subject to certain conditions with regard to the technical infrastructure used by the customer. The customer shall inform him-self about the essential functional features of the software and its technical requirements (e.g. with regard to browser, client hardware and network connection) and shall produce these himself.
3.2 The Customer is obliged to provide for the working environment of the software (hereinafter referred to as “IT systems”) in accordance with the Contractor’s specifications (e.g. with regard to database and web server software). It is the Customer’s responsibility to ensure the proper operation of the necessary IT systems, if necessary by means of maintenance contracts with third parties.
3.3 Technical requirements and specifications accord-ing to the above clauses may change over time, especially in connection with software updates. The Con-tractor shall make the current requirements and specifications available to the Customer on an ongoing basis and shall inform the Customer in good time before any change in the requirements and specifications. The customer shall implement these without delay.
3.4 The customer shall name in writing a contact person with address, business telephone number and e-mail address, under which the availability of the contact person is ensured. The contact person must be in a position to make the necessary decisions for the customer or to bring about such decisions without delay.
3.5 The customer shall carry out proper data backups, in particular create a backup copy (hereinafter referred to as “backup”) of the data and documents stored by him at least once a day. The Customer shall ensure that backups are created completely and without errors and that the data and documents can be restored with reasonable effort.
3.6 The customer is obliged to take precautionary measures to ensure that unauthorized third parties cannot access the software, the backup copy, the documentation and other accompanying materials provided. In particular, the customer is obliged to keep the original data carrier, all existing copies of the software including the backup copy and all associated documentation in a place protected from unauthorised access by third parties. The customer shall bear the costs of such storage.
3.7 If Customer does not fulfil a duty or obligation, or does so improperly or late, and if Contractor is there-fore unable to perform its services in accordance with the contract, Contractor shall not be responsible for any disadvantages arising therefrom for Customer. Contractor shall invoice Customer for the additional expenditure caused thereby at normal market prices.
4. Warranty for material defects
4.1 Software is free of material defects if, at the time of the transfer of risk, it essentially has the agreed quality described in the offer. The Contractor does not guarantee that the software will be used without interruption or error, unless such a guarantee is expressly described as such in the offer. Customer shall provide Contractor with all documents and information required for the elimination of software errors. The customer’s claim to the removal of defects is excluded if the defect is not reproducible.
4.2 In the event of software defects that occur during the term of the agreement, Contractor warrants the contractual use by eliminating the defect. The elimination of software errors is carried out either by showing the customer a reasonable workaround for the error (hereinafter “Workaround”) or by delivering a new program version (hereinafter “Update”).
4.3 In the event of on-premise use, the Customer shall be obliged to install and/or implement without delay any updates or other measures provided by the Con-tractor for the elimination of errors.
4.4 For the elimination of software errors it may be necessary for Contractor to gain access to the software or the IT systems of Customer. In this respect, Custom-er shall grant Contractor access to the software and the IT systems directly and/or by means of remote data transmission and shall provide all available documents (e.g. log files) which enable Contractor to trace and reproduce malfunctions and errors.
4.5 If the defectiveness is due to the use of defective third-party software which the Contractor uses for the purpose of providing the service and whose defect the Contractor is not permitted to remedy itself, the Con-tractor’s obligation to remedy the defect shall consist in asserting claims against the respective licensors.
4.6 If defects occur in the products provided by the customer, the Contractor is not obliged to remedy these defects. The Contractor will, however, at the request of the customer, support all measures to eliminate the defects to an appropriate extent. The Con-tractor shall additionally invoice the Customer for the support provided by the Contractor at standard market prices.
5. Rights of the customer in case of defects of title
5.1 The Contractor shall ensure that the services to be provided do not infringe any rights of third parties when used by the Customer in accordance with the contract.
5.2 If a third party asserts claims against the Customer due to the infringement of rights, the Customer shall immediately inform the Contractor of this in writing. Customer shall not make any acknowledgement to the third party and shall reserve all defensive measures and comparative actions for Contractor.
5.3 If the customer ceases to use the software for reasons of damage reduction or other important reasons, he is obliged to point out to the third party that the cessation of use does not constitute an acknowledgement of an infringement of property rights.
5.4 Contractor shall be entitled, at its own discretion, either to modify the performance in such a way that the right of the third party is no longer infringed, or to provide Customer with the necessary authorization to use the performance. Self-execution by the customer or by involving third parties is excluded. With regard to claims for damages by the customer, section A.5 shall apply.
5.5 Claims of the customer are excluded if he is responsible for the infringement of the rights of third parties or if the infringement is caused by special specifications of the customer, by an application not foreseeable by the Contractor or if it is caused by the fact that the software is modified by the customer or used together with hardware or software not supplied by the Contractor.
C. Provision of software maintenance and support
1. Scope of services
1.1 The Contractor provides the following services (hereinafter jointly referred to as “software maintenance”):
a) Error correction of the software
b) Support services
1.2 Software maintenance is provided by the Contractor in accordance with the current state of the art. The Contractor takes into account the general process and industry standards. The performance of services is to be oriented to the latest state of the software and to the interests of all software users.
2. Elimination of software errors
2.1 The Contractor shall remedy any errors in the soft-ware occurring during the term of the agreement based on the following provisions. The elimination of errors includes the localisation of the cause of the error, error diagnosis and services aimed at eliminating the error, including the provision of new versions of the software (updates). The elimination of an error also includes the correction of the associated documentation.
2.2 Errors in the software shall be divided by the Con-tractor into the following categories at its reasonable discretion, taking into account the interests of the Customer:
a) Class 1 error (high priority): Error that causes a failure of the entire system or essential parts of it, so that its use is completely or almost completely impossible. The impairment of the operating pro-cess is so significant that such a remedy is indispensable.
b) Class 2 error (increased priority): A defect that considerably impairs the use of the system so that a meaningful use is only possible at unreasonable expense. Workarounds are only acceptable for the customer for a limited time. Several errors of class 2 occurring in parallel can justify an error of class 1.
c) Class 3 errors (normal priority): Other errors that do not or only insignificantly affect the system us-age. Several class 3 errors occurring in parallel can cause a class 2 error.
2.3 The Contractor shall react to the notification of an error by the customer within the following reaction periods:
a) For class 1 defects: within (2) hours after receipt of the notification;
b) for class 2 defects: within four (4) hours after receipt of the notification;
(c) For class 3 errors: within one (1) working day after receipt of the notification.
2.4 In the case of class 1 and 2 errors, the Contractor is entitled to provide a workaround until the errors are eliminated.
2.5 In order to eliminate the errors, the Contractor is also entitled to provide new releases of the software, which, in addition to eliminating the errors, also contain new functions.
3. Support services
3.1 Within the scope of operational possibilities, Con-tractor shall provide support services for Customer’s inquiries in connection with the technical requirements and conditions for the use of the software as well as individual functional aspects. In the case of on-premise use, the Customer is responsible for the con-tact with the end user (1st/2nd level support).
3.2 “Support Hours”: Support services with regard to the Software are provided by Contractor from Monday to Friday between 9 a.m. and 5 p.m. (with the exception of public holidays at Contractor’s place of business). The time zone at the registered office of the Contractor (CET) applies for the support hours.
3.3 “Support requests”: The Support is available to the Customer by the LOOMEO service desk. The Contractor assigns a processing number (hereinafter referred to as “Ticket”) for each request from the Customer.
Service Desk link: loomeo.atlassian.net/servicedesk/Customer/portal/2
3.4 In the case of on-premise use, the customer shall name a maximum of four system administrators of its employees working at the installation site of the soft-ware as contact persons. Only these employees are authorized to report errors. The prerequisite is that these employees have participated in a corresponding training course of the Contractor at the customer’s expense. The Customer shall notify changes in the contact persons immediately in writing or in text form.
3.5 Prior to an error message, Customer shall carry out an analysis of the system environment within the scope of its possibilities in order to ensure that the error is not based on system components that are not part of the contractually owed performance of Contractor.
3.6 In the case of SaaS use, availability is determined as described below. “Downtime” means the total time in hours of a year during which the software is not able to respond to interaction requests from the client, with the exception of downtimes that occur due to the causes specified in Section 2. The availability per year in percent is calculated as: (8,760 hours – downtime) / 8,760 hours. The software is provided with an annual average availability of 99.9%:
3.7 Downtimes are excluded from the calculation of downtime in accordance with Section 3.6 under the following circumstances:
a) Scheduled maintenance / updating and announced downtime, including backup intervals as well as the scheduled maintenance and announced downtime performed by the IT infrastructure provider (IaaS operator)
b) Misuse of access rights by the customer or other use of the software modules in violation of the contractual terms or contrary to the documentation for the software modules;
c) Downtimes during which the Contractor provides the Customer with access to a previous version of the software, but whose functionality is not significantly limited compared to the current version;
d) Other problems which are not under the reason-able control of Contractor, including: working on the system at the request of Customer, restoring an older database status from a backup medium or us-ing database transaction protocols, interruptions due to requirements of the manufacturers of third-party components or the runtime environment, disruptions in the IT network (WAN communication) or the Customer’s power supply, failure of Customer to comply with the technical requirements for use.
3.8 In the case of SaaS use, the Contractor shall carry out scheduled maintenance / updating of the software as a rule every six (6) weeks. The Contractor shall notify the Client at least three (3) working days in advance of any additionally required scheduled maintenance/updating work. In urgent cases, e.g. for the installation of security-relevant patches, unplanned downtimes may become necessary due to maintenance/updating work. In this case the Contractor shall inform the Customer as early as possible.
3.9 In the event that service levels are not met for SaaS use, the parties shall establish the following procedure:
a) The Contractor notifies the client, or the client asks the Contractor to analyze the service level da-ta. For this purpose, Contractor shall record the availability at the point of delivery and provide the Customer with this data in a digital format upon re-quest.
b) The Contractor shall immediately determine the cause of the malfunction and implement appropriate measures within a reasonable period of time in order to maintain the service level.
c) The Contractor has not violated service levels if the cause analysis shows that the non-compliance with the corresponding service level was caused by the Customer.
4 IT Security
4.1 The Contractor takes IT security very seriously and guarantees in this context
a) compliance with the technical and organisational measures as described in the processing for order processing under Art. 28 of the German general data protection regulation (DSGVO);
b) the orientation towards the specifications of the German Federal Office for Information Security (BSI) on IT security. On request, the Contractor will provide an up-to-date IT security concept in digital form.
4.2 The Contractor strives for a relevant certification for IT security and currently implements the measures required for this. After completion of the certification, the Contractor will, upon request, provide suitable documents to prove IT security in digital form.
D. Marketing, advertising and promotion of the use of LOOMEO software
1. The Contractor lists on its website a small number of customers as examples of organisations using its products. All other information about his customers (customer references, case studies, etc.) will only be published after the Contractor has worked with the customer and obtained his approval.
2. If the customer does not want Contractor to mention his name, he will send a message to the support e-mail address or to the help desk. Contractor will then add the customer to a list of companies that do not wish to be known or made public in any form (including the customer list on Contractor’s website).
3. Contractor will use the Customer’s contact details and information on the use of the services to send advertising messages that may be of particular interest to the Customer, for example by e-mail or by displaying LOOMEO ads on the websites and applications of other companies and on platforms such as Facebook and Google. These communications are designed to generate interest and maximize the customer’s user experience. This includes information about new features, survey invitations, newsletters, and events that we believe may be of interest to customers.
4. The Contractor also communicates with the customer about new product offers, promotions and competitions. Customer can decide at any time whether it wish to receive or cancel these communications.
E. Final provisions
1. Changes and additions to the contract must be made in writing. This also applies to the amendment or cancellation of this clause.
2. The assignment of rights or obligations of the customer under the contract to third parties is not permitted without the prior written consent of the Contractor.
3. The customer is only entitled to set-off or retention in the case of claims which have been legally established or are undisputed.
4. The export of the software and the documentation may be subject to approval, e.g. due to its nature or its intended use. Customer shall be liable for any violations of export control regulations if Customer uses the software outside the country in which Customer’s registered office is located and shall indemnify Contractor against any claims of third parties arising from the violation of such export control regulations.
5. The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes arising from and in connection with the contract shall be the Contractor’s place of business, provided that each party is a merchant or legal entity under public law. The Contractor remains entitled to sue at the customer’s general place of jurisdiction.
6. Should individual provisions of this contract be or become ineffective, this shall not affect the effective-ness of the remaining provisions. It is the express will of the parties to maintain the validity of the remaining provisions under all circumstances and thus to waive § 139 BGB of the German Civil Code as a whole. The parties to the contract will endeavour to find a provision in place of the invalid provision that best meets the legal and economic objectives of the contract. The same applies in the event of a gap.