(1) Crisscrossed GmbH shall provide the customer with SaaS services in the field of software for online participation and exchange of knowledge via the medium of the Internet.
(2) The subject of the agreement shall be (a) the licensing of the "WE THINQ" software (hereinafter referred to as "SOFTWARE") by Crisscrossed GmbH for use via the Internet; and (b) the provision of storage space on Crisscrossed GmbH's servers.
(1) Crisscrossed GmbH shall provide the customer with the respective applicable version of the SOFTWARE free of charge via the Internet for the duration of the use agreement. To this end, Crisscrossed GmbH shall install the SOFTWARE on a server accessible to customers via the Internet.
(2) The respective current range of features of the SOFTWARE can be seen from its current specification of services on Crisscrossed GmbH's website at www.wethinq.com.
(3) Crisscrossed GmbH shall, the technical facilities permitting, immediately eliminate any software bugs. A bug shall exist if the SOFTWARE does not fulfil the functions specified in the specification of services, provides erroneous results or does not function correctly in any other way, so that use of the SOFTWARE is impossible or restricted.
(4) Crisscrossed GmbH shall perpetually enhance the SOFTWARE and shall improve it by means of ongoing updates and upgrades.
(1) Crisscrossed GmbH hereby grants the customer the non-exclusive and non-transferable right to use the SOFTWARE designated in the use agreement during the term of the agreement within the scope of SAAS services, as intended.
(2) The customer may only edit the SOFTWARE as long as the latter is covered by use of the SOFTWARE as intended, as per the respective current specification of services.
(3) The customer may only duplicate the SOFTWARE as long as the latter is covered by use of the SOFTWARE as intended, as per the respective current specification of services. In regard to necessary duplication, this includes loading the SOFTWARE into the random access memory, not, however, the installation or saving of the SOFTWARE, even only temporarily, on data carriers (such as hard disks, etc.) of the hardware used by the customer.
(4) The customer shall not be entitled to provide the SOFTWARE to a third party for use, either for a fee or free of charge. Thus, the customer shall expressly not be permitted to rent on the SOFTWARE to third parties.
(5) Crisscrossed GmbH shall provide the SOFTWARE to non-profit-organisations (NPOs) for use free of charge or on special conditions. For this purpose, a special use agreement is to be concluded.
(6) The customer undertakes to design any contractual relations it may have with third parties in such a way that free use of the SOFTWARE is excluded.
(1) Crisscrossed GmbH shall provide the customer with designated storage space on a server, for storing its data. The customer may store content on this server up to an extent of 30 GB, in accordance with the technical specifications laid down in Appendix 1 to these General Terms and Conditions of Business. If the storage space for storing the data should no longer be sufficient, Crisscrossed GmbH shall inform the customer thereof. The customer may subsequently order corresponding quotas, subject to Crisscrossed GmbH having them available.
(2) Crisscrossed GmbH shall ensure that the stored data is accessible via the Internet.
(3) The customer shall not be entitled to license such storage space to a third party for use, either in part or in full, whether for a fee or free of charge.
(4) The customer undertakes not to store any content in the storage space, the provision, publication or use of which infringes applicable law or agreements with third parties.
(5) Crisscrossed GmbH is obliged to take suitable precautions to prevent data loss or unauthorised access of customer data by third parties. To this end, Crisscrossed GmbH shall make daily back-ups, check the customer's data for viruses, and install firewalls as per the state of the art.
(6) The customer shall in any case remain the sole party entitled to the data, and may therefore, at any time, in particular after terminating the agreement, request individual pieces of data or all the data to be handed over, without Crisscrossed GmbH having any right of retention. The data shall, at the customer's option, either be given out by being handed over on data carriers or by being transmitted via a data network. The customer shall have no claim to also obtain the software suitable for use with the data.
(1) The scope of the support can be seen from Appendix 2 to these General Terms and Conditions of Business.
(2) Crisscrossed GmbH shall answer any enquiries on the part of the customer on the use of the contractual SOFTWARE and the additional SaaS services as quickly as possible within the business hours published at the website www.wethinq.com, upon receiving the respective question in text form. Art. 6 Interruption/impairment of availability
(1) Any adaptations, amendments or additions to the contractual SaaS services, as well as any measures which serve to establish and rectify malfunctions, shall only lead to a temporary interruption or impairment of the availability if the latter is absolutely necessary for technical reasons.
(2) The basic functions of the SaaS services are monitored daily. Essentially, maintenance of the SaaS services is guaranteed between 9 a.m. and 6 p.m., Monday to Friday. In the case of serious malfunctions – i.e. if it is no longer possible to use the SaaS services or use is seriously restricted – the maintenance shall be carried out within 3 hours of becoming aware of such malfunctions or being informed about them by the customer. Crisscrossed GmbH shall inform the customer on the maintenance work without delay, and carry out the technically necessary work accordingly within the shortest period of time possible. Should it not be possible to rectify the error within 12 hours, Crisscrossed GmbH shall inform the customer within 24 hours, giving grounds, as well as mentioning the period of time that it will probably take to rectify the error.
(3) The availability of the respective agreed services under Art. 1(2) of these General Terms and Conditions of Business shall amount to 98.5% as an annual average, including maintenance work, however the availability may not be impaired or interrupted for longer than two calendar days in succession.
(1) The customer undertakes not to store any illegitimate content or any content infringing the laws, official requirements or rights of third parties on the storage space made available.
(2) The customer shall be obliged to prevent unauthorised access to the protected areas of the SOFTWARE by third parties, by taking suitable precautions. To this end, the customer shall, if necessary, instruct its employees on adherence to copyright. The customer shall in particular request its employees not to make any unauthorised duplicates of the software.
(3) Notwithstanding the obligation on the part of Crisscrossed GmbH to back up data, the customer itself shall be responsible for entering and maintaining its data and information required for using the SaaS services.
(4) The customer shall be obliged to check its data and information for viruses or any other damaging components prior to entering it, and run state of the art anti-virus software to this end.
(5) The customer shall itself generate a user ID and password for accessing the SaaS services for the first time, and these will be needed for continuing to use the SaaS services. The customer shall be obliged to keep the user ID and password secret, and not make them available to third parties.
(6) The content stored by the customer in the storage space set aside for it may be copyright-protected and protected under data privacy laws. The customer hereby grants Crisscrossed GmbH the right to be allowed to make the content stored on the server available via the Internet and, in particular, to be allowed to duplicate it for the purpose of backing up data.
(1) The Customer undertakes to pay the agreed monthly fee plus the statutory VAT for the licensing of the SOFTWARE and the provision of storage space. Unless otherwise agreed, the compensation shall be in line with Crisscrossed GmbH's current price list valid as at the time of the agreement being concluded.
(2) Monthly fees shall, commencing on the day of the software being provided and available for use, be charged pro rata for the remainder of the calendar month. After that, fees are to be paid in advance each calendar month. Should a fee need to be calculated for parts of a calendar month, the latter shall be calculated at 1/30 of the monthly fee for each day.
(3) Other fees are to be paid once the service has been provided.
(4) Unless payment by direct debit has been agreed, the amount invoiced needs to be credited to the account specified on the invoice no later than on the tenth day following receipt of the invoice.
(5) Any objections to the invoice for the services provided by Crisscrossed GmbH are to be filed by the customer in writing with the office specified on the invoice within a period of eight weeks after receipt of the invoice. Once the aforementioned period has expired, the invoice shall be deemed to have been approved by the customer. Crisscrossed GmbH shall in particular point out to the customer, upon sending the invoice, the significance of its behaviour.
(6) Should the customer be in arrears with its payment obligations falling due, Crisscrossed GmbH shall be entitled to block the customer's account. Crisscrossed GmbH shall point out to the customer this consequence of its delaying in payment in a reminder sent to the customer by e-mail at the e-mail address last given by the customer. (6) Should it not be possible to serve the reminder by e-mail,Crisscrossed GmbH shall be entitled to immediately suspend the customer's account. If the customer is in arrears with payment, its payment obligation shall continue in force, in spite of its account being blocked. Once its account has been blocked, it shall only be possible for the customer to use the reading status. Should the customer not respond (arrears/non-availability of the customer) following a 6-week block, Crisscrossed GmbH, shall, without contacting the customer, be entitled to irretrievably delete the customer account, including the data available there, and without consulting the customer. Crisscrossed GmbH shall, in such a case, have a claim to the contractual compensation until the expiry of the billing period into which the point in time at which the account is deleted falls.
(7) The customer may only offset any undisputed claims, disputed claims where a decision is pending or claims that have been established with legal finality. The customer shall only be entitled to assert a right of retention based on counterclaims arising from this agreement.
(1) Crisscrossed GmbH warrants the functionality and readiness for operation of the SaaS services, in accordance with the provisions of these General Terms and Conditions of Business.
(2) In the event that use is made of services of Crisscrossed GmbH by unauthorised third parties using the customer's account log-in details, the customer shall be liable within the scope of the liability existing under civil law for any fees incurred as a result until such time as the customer's order to change the account log-in details is received or the loss or theft is notified, provided that the customer is itself at fault in regard to the access obtained by the unauthorised third party.
(3) The customer shall be obliged to indemnify Crisscrossed GmbH against any claims made by third parties based on the data stored by it, and reimburse Crisscrossed GmbH any costs which may be incurred by Crisscrossed GmbH due to any infringements of rights.
(4) Crisscrossed GmbH shall be entitled to immediately block the storage space if there is a substantiated reason to suspect that the stored data is illegitimate in nature and/or infringes any rights of third parties. A substantiated suspicion in regard to illegality and/or an infringement of rights shall in particular exist if courts, authorities and/or other third parties make Crisscrossed GmbH aware of the latter. Crisscrossed GmbH shall in particular inform the customer about the block and the reasons for it. The block is to be removed once the suspicion has been refuted.
(5) Any claims for compensation for damage against Crisscrossed GmbH shall be excluded, regardless of the legal grounds, unless Crisscrossed GmbH or its legal representatives or vicarious agents have acted intentionally or grossly negligently. In regard to slight negligence, Crisscrossed GmbH shall only be liable if a contractual obligation material to achieving the purpose of the agreement has been infringed by Crisscrossed GmbH or its legal representatives or executives or vicarious agents, as well as in the event of there being any injury to life, the body or the health. In that respect, Crisscrossed GmbH shall only be liable for foreseeable losses, the emergence of which is typically to be expected. As to data loss, Crisscrossed GmbH shall not be liable in so far as the loss is based on the customer failing to carry out data backups and thereby ensuring that lost data can be reproduced with reasonable effort.
(1) Crisscrossed GmbH shall be freed and relieved from the obligation to perform under the use agreement if and in so far as the non-provision of services is attributable to circumstances occurring, after concluding the agreement, which constitute Acts of God.
(2) Such circumstances constituting Acts of God shall, for example, include war, strikes, civil disturbance, expropriations, cardinal changes in law, storm, floods and any other natural disasters, as well as other circumstances which are not the fault of the provider. [The latter shall in particular include water penetration, power cuts and interruptions to or destruction of lines transmitting data.]
(3) Each contracting party is to inform the other contracting party in writing without delay on the occurrence of an Act of God.
(1) The use agreement is being concluded for an indefinite period of time. The contractual relationship shall commence upon application and registration by the customer, and may be terminated by either party in writing at any time, giving 30 days' notice to the end of a month.
(2) The right of either contracting party to terminate the agreement for a significant reason shall not be affected thereby. Crisscrossed GmbH shall in particular be entitled to terminate the agreement without notice if, in spite of a reminder being issued and a grace period being set, the customer does not make payments that are due or infringes the contractual provisions on the use of the SaaS services. In any event, termination without notice shall only be legally valid if the other party has been warned in writing and requested to remedy the alleged grounds for termination without notice within a reasonable period of time.
(1) The customer shall itself be responsible for the declarations of consent by its customers and contractual partners necessary in accordance with the provisions of the Data Privacy Act.
(2) Crisscrossed GmbH undertakes to keep strict confidentiality concerning any confidential procedures, in particular business or trade secrets of the customer which may become known to it in the course of drafting, implementing and fulfilling the use agreement, and not to either pass them on or utilise them in any way. The latter shall apply to any unauthorised third parties, i.e. also such unauthorised employees, of both Crisscrossed GmbH and the customer, unless the passing on of information falls within the scope of the proper fulfilment of Crisscrossed GmbH's contractual obligations. In case of doubt, Crisscrossed GmbH shall obtain the customer's consent to passing on such information.
(3) Crisscrossed GmbH undertakes to enter into an agreement having the same content as paragraph 2 above of this contractual clause with all its employees and sub-contractors deployed in connection with drafting, implementing and fulfilling this agreement.
(1) In regard to the General Terms and Conditions of Business and the entire legal relations between Crisscrossed GmbH and the customer, the law of the Federal Republic of Germany shall apply, subject to exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Should the purchaser be a merchant within the meaning of the German Commercial Code (HGB), a legal person under public law or a special fund governed by public law, Frankfurt shall be the place of jurisdiction for any disputes arising, either directly or indirectly, from the contractual relationship. Crisscrossed GmbH shall, however, be entitled to sue the purchaser at any other place of jurisdiction. Moreover, the place of fulfilment shall be Frankfurt.
(2) The contractual language shall be German.
(1) No verbal subsidiary agreements have been made. Any amendments and addenda to this agreement shall only be valid if they have been agreed by the contracting parties in writing. The latter shall also apply to amending this contractual provision.
(2) Should any individual or multiple provisions of the General Terms and Conditions of Business be or become invalid or contain a loophole, the contracting parties undertake to enter into negotiations with the aim of replacing or supplementing the invalid or incomplete provision by an appropriate individual provision which largely corresponds to the economic purpose of the desired provision. The validity of the remaining provisions shall not be affected thereby.
(3) Appendices to which reference is made in these General Terms and Conditions of Business shall form an integral part of this agreement.
Frankfurt, last updated at 17th of October 2014 - Crisscrossed GmbH