Conditions for using the headful software

The following terms of use apply between headful software GmbH (hereinafter “Provider”) and its customers (hereinafter “Customer”)

1. Subject matter of the contract

The subject of these Terms of Use between the Provider and the Customer is the provision of the headful software (hereinafter “Software”) by the Provider for a fee for use by the Customer via a remote data connection, limited to the term of the Agreement. The installation of the Software for use by the Customer is not subject to the Agreement.

2. Services of the provider; software

2.1.     The provider provides the customer with the use of the software specified in Charge 1, with the functionality described in more detail therein and subject to the functional requirements also specified therein, for the agreed number of authorized users. The software is made available by the provider for use at the router output of the data center used by the provider. The software remains on the provider’s server or the data center used by the provider. The provider is not responsible for establishing and maintaining the data connection between the customer’s IT system and the transfer point operated by the provider.

2.2.     The customer accesses the software via the interface (API) specified in Appendix 1. The accessing customer systems must meet the minimum technical requirements specified in Appendix 1.

2.3.     The customer may increase or decrease the number of authorized users of the software as required under the agreed conditions.

2.4.     The Provider may provide a so-called Software Development Kit (hereinafter: “SDK”) that facilitates the integration of the Software into the Customer’s systems. However, the SDK is neither part of the Software nor part of this Agreement, and its provision is at the Provider’s sole discretion.

2.5.     Outside of release updates, the Provider may modify the software within the scope of technical possibilities and use the currently offered version, as well as change the data center it uses, if the change to the software or the data center is reasonable for the Customer, taking into account the Provider’s interests. However, the Customer has no right to use a newer version of the software specified in Appendix 1.

3. Service Level/Availability

3.1.     The software is made available to the customer for use in accordance with the following terms and conditions. The provider guarantees a total availability of the services of at least 95 percent per month at the handover point. The handover point is the router output of the data center used by the provider.

3.2.     Availability is defined as the customer’s ability to use all of the software’s main functions. Maintenance periods and periods of disruption, subject to the resolution time, are considered software availability periods. Periods of minor disruptions are not taken into account when calculating availability. The provider’s measurement instruments in the data center are used to prove availability.

3.3.     The customer must report any malfunctions immediately to the following contact details: support@elisaa13.sg-host.com. Fault reporting and resolution is guaranteed Monday through Friday (excluding national holidays in the Federal Republic of Germany) between 9:00 a.m. and 6:00 p.m. (CET) (service hours).

3.4.     The provider will resolve serious malfunctions (the use of the software as a whole or a key function of the software is not possible), even outside of service hours, within 72 hours of receiving the notification of the malfunction – provided the notification is received within service hours (resolution time). If it is foreseeable that the malfunction cannot be resolved within this time period, the provider will inform the customer immediately and indicate the expected exceedance of the time period.

3.5.     Other significant malfunctions (main or secondary functions of the software are disrupted but can still be used; or other significant malfunctions) will be resolved within 96 hours at the latest during service hours (resolution time).

3.6.     The elimination of minor disruptions is at the discretion of the provider.

4. Data transmission

4.1.     For the software to function, the customer must transmit data to the provider, who must then store this data on their systems.

4.2.     The customer grants the provider all rights to this data necessary for the operation of the software, including the right to reproduce or process it. The provider is also entitled to store the data in a backup data center. To resolve disruptions, the provider is also entitled to make changes to the structure or format of the data. Furthermore, the provider is authorized, for the record, to delete certain data records, particularly if they appear to be incorrect or unsuitable for other reasons.

4.3.     The provider is not responsible for the data uploaded by the customer.

5. Processing of personal data

5.1.     If the customer processes personal data within the scope of this contractual relationship, they are responsible for compliance with data protection regulations. This includes, for the avoidance of doubt, EU legal requirements and other national or local data protection regulations, insofar as they apply to the customer’s data processing. The customer indemnifies the provider against all claims asserted by third parties against the provider due to unlawful data processing by the customer.

5.2.The provider will process the data transmitted by the customer only in accordance with the customer’s instructions. If the provider believes that a customer instruction violates data protection regulations, the provider will notify the customer immediately. Details of the contract data processing are set out in Appendix 2, “Contract Data Processing Agreement.”

6. Access rights

6.1.The customer will receive the necessary access data to access the software. These access data may only be used by the customer for the purposes of using the software within the scope of this agreement and must otherwise be kept confidential.

6.2.     The customer is not entitled to grant third parties access rights or use of the provider’s services. A third party does not include anyone who is a vicarious agent of the customer and who uses the services free of charge, such as employees of the customer, freelancers within the scope of the contractual relationship, etc.

7. Cooperation services

7.1.     The customer is responsible for establishing a data connection between the IT systems they intend to use and the data transfer point defined by the provider. The provider is entitled to redefine the data transfer point and will inform the customer of the new data transfer point within a reasonable period of time. In this case, the customer will establish a connection to the newly defined transfer point.

7.2.To use the Provider’s services, the Customer will only use systems that meet the requirements specified in Appendix 2. The configuration of its IT system is the Customer’s responsibility.

8. Remuneration, due date

8.1.     All prices are net prices and are subject to statutory taxes and duties.

9. Contract term, termination

9.1.     The contract term is one year unless otherwise agreed.

9.2.     The right to terminate for good cause remains unaffected.

10. Disruptions and Support

10.1.If the suitability for contractual use is impaired to a more than insignificant extent, the provider shall be liable in accordance with statutory provisions. Strict liability for damages for defects that already existed at the time of contract conclusion is excluded.

10.2.The Customer must immediately report any malfunctions in the functionality of the Software to the Provider via the ticket system set up by the Provider.

11. Liability

11.1.The parties are liable to each other without limitation:

• in the case of malice, intent or gross negligence;
• within the scope of a guarantee expressly provided by them;
• for damages resulting from injury to life, body or health;
• for the breach of an essential contractual obligation, the fullfilment of which is essential for the proper execution of this contract and on whose compliance the parties regularly rely and may rely (“cardinal obligation”), but limited to the damage that could reasonably be expected at the time the contract was concluded;
• in accordance with the provisions of the Product Liability Act.

11.2.Otherwise, liability of the parties is excluded.

11.3. The above liability rules apply accordingly to the conduct of and claims against employees, legal representatives and vicarious agents of the parties.

12. Force majeure

Neither party is obligated to fulfill its contractual obligations in the event of, and for the duration of, force majeure. In particular, the following circumstances are considered force majeure in this sense:

• fire/explosion/flood for which the contracting party is not responsible,
• War, mutiny, blockade, embargo,
• industrial action lasting more than 6 weeks and not caused by the contracting party through negligence,
• technical problems with the Internet that cannot be influenced by a contractual partner.

It is clarified that the SARS Covid-19 pandemic does not constitute a force majeure circumstance.

Each contracting party must immediately notify the other in writing of the occurrence of a case of force majeure.

13. Data protection and order processing

13.1.Information on data processing can be found in the Privacy Policy.

13.2. Insofar as we process personal data in accordance with Art. 28 GDPR, our Data processing agreement (DPA).

14. Final provisions

14.1.Any other general terms and conditions of the parties shall not apply to this agreement. This shall apply even if such terms and conditions are not expressly contradicted.

14.2.The assignment of claims is only permitted with the prior written consent of the other contracting party. Consent may not be unreasonably withheld. The provisions of Section 354a of the German Commercial Code (HGB) remain unaffected. A right of retention may only be asserted due to counterclaims arising from the respective contractual relationship. The contracting parties may only offset claims that have been legally established or are undisputed.

14.3.All changes, additions and terminations of contractual agreements must be made in writing, as must the cancellation of the written form requirement, unless this contract stipulates text form.

14.4.Should individual provisions of the parties’ agreements be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected. In this case, the parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any gaps in the agreements.

14.5.The law of the Federal Republic of Germany applies.

Stand: 14.05.2023