1. SUBJECT MATTER OF THE CONTRACT
1.1 These terms and conditions apply to the use of the DBI software according to the current product description and the order form as Software-as-a-Service (“SaaS”) or Cloud offer.
1.2 The software with the internal designation ABIS (software) is operated by the DBI as a SaaS or cloud solution. The customer is enabled to use an Internet connection during the term of this contract for his own purposes and to store and process his data with the help of it, stored and running on the servers of DBI or a service provider commissioned by DBI.
1.3 These terms and conditions apply exclusively. Contractual terms and conditions of the customer shall not apply. Counter-confirmations of the customer with reference to his own terms and conditions of business are expressly objected to.
2. TYPE AND SCOPE OF SERVICE
DBI shall make the software available to the customer in the agreed version at the router exit of the data center where the server with the software is located (“transfer point”). The software, the computing power required for use and the required memory and data processing space are provided by DBI. DBI does not owe the establishment and maintenance of the data connection between the customer’s IT systems and the described transfer point.
3. SOFTWARE AVAILABILITY
3.1 DBI points out to the customer that restrictions or impairments of the services provided may arise which are beyond the control of DBI. This includes in particular actions of third parties who are not acting on behalf of DBI and of influential technical conditions of the Internet as well as force majeure. The hardware, software and technical infrastructure used by the customer can also influence DBI’s services. Insofar as such circumstances have an influence on the availability or functionality of the service provided by DBI, this has no effect on the contractual conformity of the services provided.
3.2 The customer is obliged to notify DBI immediately and as precisely as possible in accordance with the agreements in the order form of any functional failures, malfunctions or impairments of the software.
4. RIGHTS TO DATA PROCESSING, DATA BACKUP
4.1 DBI complies with the legal data protection regulations.
4.2 The customer grants DBI the right to reproduce the data to be stored by DBI for the purpose of performing the contract, insofar as this is necessary for the provision of the services owed under this contract. DBI is also authorized to store the data in a breakdown system or separate failure data center. DBI is also entitled to make changes to the structure of the data or the data format in order to eliminate faults.
4.3 DBI regularly backs up the customer’s data on the server responsible by DBI to an external backup server. The customer may, as far as technically possible, extract this data at any time for backup purposes and is obliged to do so at regular, customary intervals.
to do. If this is not possible, DBI shall make the data available to the customer as a backup once a month.
4.4 If and to the extent that the customer processes or allows personal data to be processed on the IT systems technically responsible by DBI, an order data processing agreement shall be concluded.
5. RIGHTS OF USE
5.1 Since the software runs exclusively on servers of DBI or service providers commissioned by DBI, the customer does not require any copyrights to use the software, and DBI does not grant any such rights.
5.2 However, DBI grants the customer the non-exclusive, non-transferable right for the duration of the contract, which is limited in time to the duration agreed in this order sheet, to load the user interface of the software for display on the screen into the working memory of the terminals used for this purpose in accordance with the contract and to make the user interface copies resulting from this, as well as to use the software for the contractual purposes in accordance with the product description.
5.3 Unless otherwise agreed between the parties, it is inadmissible to allow third parties to use the software. Third parties also include companies affiliated with the Group’s customers.
6.1 A support case exists if the software does not fulfil the contractual functions according to the product description. The type of error message depends on the order sheet as well as the scope of support services.
6.2 If the customer reports a support case, he has to provide a detailed description of the respective malfunction in order to enable an efficient troubleshooting.
6.3 The parties may enter into a separate agreement on the provision of support, maintenance and care services.
7.2 If the customer delays payment of a due remuneration by more than four weeks, DBI shall be entitled to block access to the software after prior reminder with setting of a deadline and expiry of the deadline. The DBIs’ right to remuneration remains unaffected by the blocking. Access to the software will be activated again immediately after payment of the arrears. The right to block access shall also exist as a milder means if DBI has a right to extraordinary termination in accordance with Section 11.2.
7.3 After expiry of the initial term, DBI may, according to the order sheet, adjust the prices as well as the rates for an agreed remuneration in accordance with the general price development. If the fee increase amounts to more than 8%, the customer may terminate the contract at the end of the current contract month.
7.4 The remuneration for other services shall be based on the currently valid DBIs price sheet.
8. CUSTOMER’ S OBLIGATIONS TO COOPERATE
8.1 The customer shall support DBI in providing the contractual services to a reasonable extent.
8.2 The customer is responsible for the proper and regular backup of his data. This also applies to the documents provided by DBI in the course of the execution of the contract.
8.3 In order to use the software, the system requirements resulting from the product description or the order sheet must be fulfilled by the customer. The customer bears the responsibility for this.
8.4 The customer shall keep the access data made available to him secret and shall ensure that any employees to whom access data are made available also do so. The performance of the DBIs may not be made available to third parties unless this has been expressly agreed by the parties.
In principle, the statutory warranty provisions apply. Sections 536b (knowledge of the lessee of the defect at the time of contract conclusion or acceptance), 536c (defects occurring during the rental period; notification of defects by the lessee) of the German Civil Code (BGB) shall apply. However, the application of § 536a para. 2 (rights of the lessee to remove himself/herself) is excluded. The application of § 536a Abs. 1 BGB (German Civil Code) (damage compensation obligation of the landlord) is also excluded, as far as the standard provides for liability independent of fault.
10. LIABILITY AND COMPENSATION FOR DAMAGES
10.1 DBI shall be liable for damage to the customer caused intentionally or by gross negligence, resulting from the absence of a guaranteed quality, which is based on a culpable breach of essential contractual obligations (so-called cardinal obligations), which are the result of a culpable violation of health, body or life, or for which liability is provided for under the Product Liability Act, in accordance with the statutory provisions.
10.2 Cardinal obligations are such contractual obligations, the fulfilment of which makes the proper execution of the contract possible in the first place and on whose observance the contractual partner may regularly rely, and the breach of which on the other hand jeopardizes the achievement of the purpose of the contract.
10.3 In the event of breach of a cardinal obligation, liability – insofar as the damage is based solely on slight negligence – shall be limited to such damage, the occurrence of which must typically be expected when using the contractual software.
10.4 In all other respects, liability – regardless of the legal basis – is excluded.
10.5 If the loss of data results in damage to the customer, DBI shall not be liable for this, insofar as the damage would have been avoided by a regular and complete backup of all relevant data by the customer. The customer shall carry out or have carried out a regular and complete data backup himself or by a third party and is solely responsible for this.
11. CUSTOMER DATA AND EXEMPTION FROM CLAIMS OF THIRD PARTIES
11.1 As a technical service provider, DBI stores content and data for the customer, which the customer enters and stores when using the software and makes available for retrieval. The customer undertakes vis-à-vis DBI to refrain from posting any illegal content and data, which is punishable or otherwise unlawful in absolute terms or in relation to individual third parties, and to refrain from using viruses or other malicious software.
software in connection with the Software. The customer remains responsible for personal data and must therefore always check whether the processing of such data via the use of the software is based on appropriate permissions.
11.2 The customer shall be solely responsible for all content and data used and processed as well as any legal positions required for this purpose. DBI does not take note of the contents of the customer and does not check the contents used by the customer with the software.
11.3 In this context, the customer undertakes to indemnify DBI from any liability and any costs, including possible and actual costs of legal proceedings, if DBI is held liable by third parties, including employees of the customer personally, as a result of alleged acts or omissions by the customer. DBI shall inform the customer of the claim and, insofar as this is legally possible, give him the opportunity to defend himself against the asserted claim. At the same time, the customer shall immediately notify DBI in full of all information available to him on the facts of the matter in question.
11.4 Any further claims for damages on the part of DBIs shall remain unaffected.
12. CONTRACT TERM AND TERMINATION OF THE CONTRACT
12.1 The duration of the contract is based on the offer sheet.
12.2 Both parties reserve the right to give extraordinary notice of termination for good cause if the statutory requirements are met. An important reason for DBI shall in particular be deemed to exist if, despite a reminder, the customer is more than two months in arrears with the payment of a due remuneration. Insofar as the customer is responsible for the reason for termination, the customer shall be obliged to pay DBI the agreed remuneration less any expenses saved by DBI until the date on which the contract would end at the earliest in the event of a regular termination.
12.3 Notice of termination must be made in writing to become effective. Compliance with this form is a prerequisite for the validity of the termination. Fax and e-mail do not satisfy the written form requirement.
12.4 After termination of the contract, DBI shall return to the customer all documents provided by the customer and still in the possession of DBI as well as data carriers in connection with the present contract and shall delete the data stored at DBI, insofar as there are no obligations or rights to retain them. Metadata collected by DBI for the purposes of its own research on the customer database itself remains unaffected by the deletion process as they are considered to be the property of DBI.
13.1 The parties shall be obliged not to disclose, pass on to third parties, record or otherwise exploit any information about the other party which becomes known or becomes known to them in connection with this contract and which is identified as confidential or which is identifiable by other circumstances as business and trade secrets (hereinafter referred to as “confidential information” or “Confidential”), unless the other party to the disclosure or use in each case does not disclose or otherwise exploit such information.
expressly and in writing or the information must be disclosed by law, court order or administrative decision.
13.2 The information shall not be considered confidential information within the meaning of this Clause 12 if it is
were already known to the other party without the information being subject to a confidentiality obligation,
are generally known or become known without violations of the confidentiality obligations assumed,
be disclosed to the other party by a third party without breach of confidentiality.
13.3 The obligations under this Clause 12 shall survive the end of this Agreement.
14. TRANSFER OF RIGHTS AND DUTIES
The assignment of the rights and obligations under this contract shall only be permitted with the prior written consent of DBI. DBI is entitled to entrust third parties with the fulfilment of the obligations arising from this contract.
15.1 This agreement and its amendments as well as all contract-relevant declarations, notification and documentation obligations must be made in writing unless another form has been agreed upon.