General terms and conditions for the use of the “sharesuite” software as of 08/01/2016
1 .1 The software provided by sharesuite GmbH via the Internet is referred to as “sharesuite”. The license agreement describes the modules and functions provided. The license agreement describes the modules and functions provided.
1.2 A “customer” is a legal entity or individual who uses sharesuiteand enters into the obligation to pay sharesuite GmbH for the use of sharesuite.
1.3 “Users” are all employees of the customer or other persons who receive a right to use sharesuitewithin the framework of the usage contract between the customer andsharesuite GmbH.
1.4 The application service providing contract for the use of the “sharesuite” software between sharesuite GmbH and the customer is hereinafter referred to as the “usage contract”, in which the scope of the modules and functions of sharesuiteprovided in particular, and additional agreements regarding the operation of sharesuite, as well as the payment modalities, are defined.
1.5 All data and files uploaded or otherwise transferred by the customer’s users are referred to as “content”.
§ 2 General Subject Matter of the Contract
With sharesuitethe customer receives the technical possibility and authorization for online access to a software application that is hosted on asharesuite GmbH server, and to use the functionalities of the software application within the scope of these general terms and conditions. For this purpose,sharesuite GmbH shall provide sharesuitefor use by the customer and the users authorized by him, which shall be specified in the usage contract. sharesuite GmbHthereby creates logically separated customers and assigns different access data for each customer. There is no physical separation of the different customers on different servers.
§ 3 Services, Prices
3.1 The type and scope of the contractual services and costs are derived from the customer-specific usage contract, which is agreed separately.
3.2 3.2 sharesuite GmbHis entitled to increase the usual or contractually agreed prices for the contractual services to compensate for increases in personnel costs and other costs. sharesuite GmbH shall notify the customer of such price increases in writing or by email; the price increases shall not apply to the periods for which the customer has already made payments. If the price increase is more than 10% of the previous price, the customer is entitled to terminate the usage contract in its entirety with one month’s notice to the end of a calendar month; if he makes use of such right of termination, the previous prices without increment shall be charged until the termination takes effect. An increase in prices within three months of the conclusion of the contract after the initial provision of the services is excluded.
§ 4 Right of use
4.1 The customer and the users authorized by him in accordance with the user contract shall receive the non-exclusive, non-transferable, non-sub-licensable right, which is limited in time to the term of the user contract, to online access to sharesuite
and use of the functions associated with sharesuite, using a browser in accordance with these terms and conditions. The customer shall not receive any further rights, in particular to sharesuite, the software application or the operating software.
4.2 The customer is not entitled to use sharesuitebeyond the uses permitted in accordance with these conditions, or to have it used by third parties or to make it accessible to third parties. In particular, the Customer is not entitled to copy, sell or transfer for a limited period the right to use sharesuiteor parts thereof, particularly not to lease it or rent it out.
4.3 For each case in which the customer culpably enables the use of sharesuiteby third parties or by users not named by the customer, the customer must pay an immediately due contractual penalty in the amount of twelve times the monthly license fee. sharesuite GmbHreserves the right to claim damages. In such case, the contractual penalty shall count towards the claim for damages.
4.4 In the event of an unauthorized transfer of use, the customer must immediately, upon request, provide sharesuite GmbH with all the information required to assert claims against the user, in particular his name and address.
4.5 If the contractual use of sharesuiteis impaired by third party property rights through no fault of sharesuite GmbH, sharesuite GmbH is entitled to refuse the services affected thereby. sharesuite GmbHshall inform the customer of this immediately and enable him to access his data in a suitable manner. In such case the Customer is not obliged to pay. Other claims or rights of the customer remain unaffected.
§ 5 Provision, updates, access authorization and licensing of sharesuite
5.1 sharesuite GmbH shall, within the scope of the existing technical and operational possibilities, provide the customer with operational standard sharesuiteservices, the content and scope of which result from the usage contract, and assure the operational availability of such services specified in the usage contract. sharesuiteis operationally provided when sharesuite GmbHhas informed the customer of activation (access to functional sharesuite).
5.2 sharesuite GmbH intends to expand sharesuitewith improvements and new functions at appropriate time intervals. sharesuite GmbHis not under any obligation towards the customer to expand sharesuite at fixed time intervals or by individually desired functionalities.
5.3 sharesuite GmbH reserves the right to make changes to the user interface, the services provided and sharesuitefunctions without prior notice.
5.4 Individual personal access to sharesuiteis required for each user. A single access may not be shared by several users. The user is obliged to keep his user name and password secret and not to make them accessible to third parties.
5.5 The customer shall receive a defined number of users, according to the customer-specific user contract, with each individual activation of modules.
§ 6 Data protection and data security
6.1 Both parties shall, to the extent applicable, observe the data protection regulations valid in Germany in particular, and shall oblige such of their employees who are involved in the contract to adhere to data secrecy in according with Section 5 BDSG [Federal Data Protection Act], unless they are already generally obligated accordingly.
6.2 If the customer collects, processes or uses personal data himself or through sharesuite GmbH, he is responsible for ensuring that he is entitled to do so in accordance with the applicable regulations, in particular data protection regulations, and shall releasesharesuite GmbH from third-party claims in the event of a violation.
6.3 It is hereby clarified that the customer shall still be the “owner” of the data both generally in the contractual relationship and in terms of data protection law (Section 11 BDSG). The customer is the only authorized person with regard to the power of disposal and ownership of all customer-specific data (entered data, processed, stored data, output data). sharesuite GmbH does not check the data or content stored for the customer with regard to the legal admissibility of its collection, processing and use; this responsibility shall be exclusively borne by the customer sharesuite GmbHis only entitled to process and / or use the customer-specific data exclusively in accordance with the customer’s instructions (e.g. to comply with deletion and blocking obligations) and within the framework of these conditions In particular,sharesuite GmbH is prohibited from making customer-specific data accessible to third parties in any way without the prior written consent of the customer. This also applies if the user’s data is modified or supplemented. On the other hand, sharesuite GmbH is entitled to process and use the customer’s data (e.g. billing data for the purpose of billing services to the customer) within the scope of that permissible under data protection law.
6.4 The software application, server and operating software as well as other system components of sharesuiteare operated in a data center owned by sharesuite GmbH.sharesuite GmbH may subcontract, but shall impose the obligations corresponding to the preceding clauses (order data management) on the subcontractor.
6.5 sharesuite GmbH shall take the technical and organizational security precautions and measures in accordance with the annex to Section 9 BDSG. In principle, the user is not entitled to request access to the premises where sharesuitesoftware application, servers, and operating software as well as other system components are housed. This shall not affect the access rights of the customer’s data protection officer after written notification of a compliance check regarding the requirements in accordance with Section 9 BDSG as well as the other legal and contractual handling of personal data by sharesuite GmbH in the context of the operation of sharesuiteaccording to these conditions.
§ 7 Regular data backups
Data backups shall be carried out once a day and transferred in encrypted form to a backup server. Once a week, the data backups shall be stored in encrypted form on an external storage medium. Supplementary agreements may be regulated in the customer-specific usage contract.
§ 8 Service and Support
sharesuite GmbH shall grant the customer the opportunity to take advantage of service and support services by phone and email. An employee of sharesuite GmbH or a company commissioned bysharesuite GmbH may be reached by telephone from Monday to Friday from 9:00 a.m. to 5:00 p.m. Details are regulated in the customer-specific agreement. Details are regulated in the customer-specific agreement.
§ 9 Duties and Obligations of the Customer
The customer undertakes to fulfill the obligations pertaining to the provision and processing of the user contract. In particular he shall:
9.1 pay the agreed fees in timely fashion in accordance with Section 11. For each unredeemed or returned direct debit, the customer shall reimbursesharesuite GmbH for the costs incurred to the extent that he is responsible for the cost-triggering event;
9.2 name all the users he intends to have use sharesuite. Furthermore, the customer undertakes to inform sharesuite GmbH of any organizational changes, change of employees or the like affecting the assignment of users;
9.3 protect the assigned usage and access permissions as well as identification and authentication safeguards against access by third parties and shall not pass them on to users without permission;
9.4 ensure that all commercial property rights and copyrights are observed (e.g. when transferring texts and data from third parties to the server of sharesuite GmbH);
9.5. 9.5. obtain the necessary consent of the person concerned, insofar as he collects, processes or uses personal data in the context of the use of sharesuiteand no statutory permission applies;
9.6 not misuse sharesuite or allow it to be used improperly, in particular not to transmit any information offers with illegal or immoral content or to refer to information that serves to incite hatred or violence, encourage criminal acts or glorify or downplay violence, or that are sexually offensive or pornographic, serve to seriously morally endanger children or young people or to impair the welfare or damage the reputation of sharesuite GmbH;
9.7 refrain from attempting to access information or data without authorization independently or through unauthorized third parties, or to intervene in programs operated bysharesuite GmbH or to allow them to intervene or to penetrate sharesuite GmbH data networks without authorization;
9.8 not misuse the potential exchange of electronic messages to send messages or information unsolicited to third parties for advertising purposes (spamming);
9.9 release sharesuite GmbH from all third-party claims that are based on the unlawful use of sharesuiteby the customer or a third party or that result from their approval or that arise in particular from data protection, copyright or other legal disputes associated with the use of sharesuite. If the customer recognizes or must recognize that such a violation is imminent, there is an obligation to notify sharesuite GmbHimmediately;
9.10 use sharesuitein such a way that other computer and telecommunications systems are neither disrupted nor interrupted;
9.11 keep user identities and associated access data in a secure manner and not make them accessible to third parties;
9.12 after submitting a malfunction report (see description of services) to sharesuite GmbH, reimburse the expenses incurred by the inspection, if after the inspection it turns out that there was no malfunction in the technical facilities of sharesuite GmbH and the customer could have recognized this with reasonable troubleshooting;
9.13 oblige the users authorized by him in accordance with the user contract to comply with the provisions for the use of sharesuitein Section 9.3 to 9.8, and 9.10 and 9.11;
9.14 back up the databases available in the system by downloading them by the time the contract terminates, as it cannot be ruled out that the customer will no longer be able to access these databases after the end of the usage contract;
9.15 notify sharesuite GmbH immediately if there is a suspicion of a breach of these duties and obligations.
§ 10 Improper use of sharesuite
10.1 sharesuite GmbH is entitled, in the event of an unlawful violation by the customer or the user named by him of one of the essential obligations specified in these conditions, in particular in the event of a violation of the obligations in Sections 9.6. – 9.8, to block access to sharesuiteand its data. Access shall only be restored when the breach of the corresponding obligation has been permanently eliminated or the risk of recurrence eliminated by means of a suitable cease-and-desist declaration, under penalty, issued tosharesuite GmbH. In such case, the customer remains obliged to pay the monthly fees.
10.2 sharesuite GmbH is entitled to delete the data concerned in the event of a violation of Sections 9.6 – 9.8.
10.3 If there is a culpable violation on the part of the customer in the cases of Section 10.1 and Section 10.2, the customer is obliged to pay lump-sum damages of EUR 1,000. Damages shall be set higher or lower if sharesuite GmbH proves higher damage or the customer proves lower damage; the customer may also prove that there is no damage. sharesuite GmbH reserves the right to assert other claims for damages.
10.4 In the event of an unlawful breach of the obligations set out in Section 9.6 – 9.8 by a user, sharesuite GmbH customer must immediately, upon request, provide all information required to assert claims against the user, in particular his name and address.
§ 11 Terms of payment
11.1 Monthly fees shall be paid on a pro-rata basis for the remainder of the calendar month, beginning on the day of operational availability. Thereafter, the fees shall be paid in advance each calendar month. If a fee is to be calculated for parts of a calendar month, this shall be calculated for each day at 1/30 of the monthly fee.
11.2 Other fees are payable after the service has been provided.
11.3 Unless a direct debit procedure has been agreed, the invoice amount must be credited to the account specified on the invoice no later than the tenth day after receipt of the invoice.
§ 12 Default
12.1 If the customer is in default of more than one month,sharesuite GmbH is entitled to block access to sharesuite. In such case, the customer remains obliged to pay the monthly fees.
12.2 When the customer is in arrears
⦁ for two consecutive months with the payment of the fees or a not inconsiderable part of the fees or
⦁ with the payment of a fee amounting to the fee for two months in a period that extends over more than two months,
sharesuite GmbH is entitled to terminate the user contract without observing a notice period and to demand an immediately due lump-sum compensation in the amount of a quarter of the monthly fees remaining until the end of the regular contract period.
12.3 The amount of damages shall be set higher or lower if sharesuite GmbHproves higher damage or the customer proves lower damage respectively.
12.4 sharesuite GmbH reserves the right to assert further claims due to default in payment.
12.5 If sharesuite GmbH is behind schedule with operational provision, liability is based on Section 13. The customer is only entitled to withdraw from the usage contract if sharesuite GmbH does not comply with a reasonable grace period set by the customer, which must, however, be at least two weeks.
§ 13 Liability
13.1 sharesuite GmbH has unlimited liability towards the customer in the event of willful intent or gross negligence for all damage caused by it and its legal representatives or vicarious agents.
13.2 In the event of slight negligence, sharesuite GmbH has unlimited liability in the event of injury to life, limb or health. For all else, sharesuite GmbHis only liable if it has violated an essential contractual obligation (cardinal obligation). In such cases, liability is limited to the replacement of the foreseeable, typically occurring damages. For an individual case of damage, liability is limited to the contract value, in the case of ongoing compensation to the amount of the compensation per contract year.
13.3 In addition, the liability of sharesuite GmbH due to slight negligence for damages and reimbursement of expenses is limited, regardless of the legal reason, to a total of 50 percent of the remuneration agreed upon conclusion of the contract. Liability according to 13.1 and 13.2 clause 1 thereby remains unaffected.
13.4 The strict liability of sharesuite GmbH for damages (Section 536 a BGB) for defects existing at the time of the conclusion of the contract is excluded. Section 13.1 and 13.2 remain unaffected.
13.5 Liability based on the provisions of product liability law remains unaffected.
13.6 sharesuite GmbH is not liable to the customer for damage caused to the customer by viruses or other malicious software if this damaged content was transferred to sharesuiteby the customer himself.
§ 14 Force majeure
14.1 sharesuite GmbH is released from the obligation to perform under these conditions if and to the extent that the non-performance of services is due to circumstances of force majeure after the conclusion of the contract.
14.2 Force majeure circumstances include war, strikes, unrest, expropriations, cardinal changes in law, storms, floods and other natural disasters as well as other circumstances for which sharesuite GmbH is not responsible. This also includes water penetration, power outages and interruptions or destruction of data-carrying cables.
14.3 Each party shall promptly notify the other in writing if such circumstances arise.
§ 15 Final Provisions
15.1 The customer can only transfer the rights and obligations from these conditions to third parties with the prior written consent of sharesuite GmbH. sharesuite GmbH, however, is entitled to transfer the rights and obligations from these conditions to a
group company within the meaning of Section 15 of the German Stock Corporation Act.
15.2 This contractual relationship is subject to German jurisdiction. The place of jurisdiction is Munich.
15.3 The contracting parties undertake to treat as confidential any trade and business secrets that they – including their vicarious agents – have obtained during the initiation or performance of the contract. These obligations shall not apply to information, knowledge or experience which
(a) are, without breach of confidentiality, verifiably of public knowledge,
(b) were verifiably known to the parties prior to the receipt of the information, knowledge and experience,
(c) were provided by a third party without confidentiality requirement,
(d) or have verifiably been acquired independently.
15.4 Amendments or additions to these conditions and their appendices must be made in writing and must be signed by both parties.
15.5 In the event that individual clauses of this Agreement are invalid in whole or in part, any invalid provisions shall be reinterpreted, supplemented or replaced in such a way that the
economic purpose pursued by the invalid provision is achieved. The same applies in the event that there are any loopholes in this Agreement.