General Terms and Conditions for the provision of the Parlabox reporting office software
1 Subject matter of the contract
(1) These Terms and Conditions apply to all customers of Cookiebox GmbH (hereinafter “Software Provider”) in connection with the provision of the Parlabox registration office software (“Software”), which is made available to the Customer online for use as Software-as-a-Service (SaaS), including the storage space for the data generated by the Customer or third parties through the use of the Software and/or the data required for the use of the Software and, if applicable, further future services plus (insofar as an SLA has also been concluded) the associated service, unless expressly agreed otherwise in writing between the parties.
(2) Only the contractual terms and conditions provided by the software provider (these TOS, any applicable DPA, any applicable JRA, any applicable SLA agreement) shall apply to the services provided or to be provided to the customer. Any existing TOS of the customer are hereby excluded by mutual agreement between the parties.
2 Subject matter
(1) A description of the software as well as the type, content and scope of any other services that may be purchased by the customer can be found in the service description that is provided to the customer together with the respective service; this also applies to service levels, in particular availability and maintenance windows.
(2) The software provider is entitled to change or adapt the service description, in particular in the event of an extended scope of functions and services.
(3) If the software provider provides services within the scope of a contract, these shall be described in detail in the respective contract. All services (including those not regulated separately in the contract) shall be invoiced on a time and material basis in accordance with the prices applicable at the time of performance. Meals, accommodation, travel and other reasonably necessary expenses shall be invoiced separately to the customer.
3 Granting of (usage) rights
(1) The Software Provider hereby grants the Customer the non-exclusive, non-transferable and non-sublicensable right, limited in time to the term of this Agreement, to use the Software for its internal business purposes in accordance with this Agreement. As soon as the productive environment has been set up and onboarding has been completed, the Software Provider shall provide the Customer with the access data required to use the Software.
(2) Any transfer to third parties requires the prior written consent of the software provider.
(3) The right of use and exploitation is limited to the purpose of use specified in the service description.
(4) The customer shall not be granted any further rights of use or exploitation of the software.
(5) Otherwise, the intellectual property rights shall remain with the software provider, its vicarious agents and any other licensors, whether registered or not, in particular copyrights and ancillary copyrights, database rights, trademark rights, patents, trade secrets and know-how, their vicarious agents or the respective other licensors.
(6) The customer undertakes to be responsible for its own actions and omissions and those of its employees authorized to use the software and obliges them to use the software in accordance with the contract.
(7) The customer is prohibited from
– to sublicense, license, sell, lease, rent or otherwise make the software or the service description available to third parties or provide them with access to it;
– copy, translate, disassemble, decompile, reverse engineer or otherwise modify the software in whole or in part or create derivative works thereof;
– to use the software in a way that violates applicable law, in particular the unlawful use of data and the transmission of information and data that is unlawful or infringes the property rights of third parties;
– Penetration tests without prior consultation and approval, or
– jeopardize or circumvent the operation and security of the software.
4 Provision of the software
(1) The software provider shall make the software available to the customer online as SaaS in the current version for the duration of this contract for a fee. For this purpose, the software provider shall set up the software on one or more central servers that are accessible via the Internet.
(2) The customer is responsible for providing the system environment (e.g. use of certain end devices or software tools) in accordance with the requirements in the service description. The use of the software may also depend on the available network technology and the technical and geographical conditions at the place of use. Details on this can be found in the service description.
(3) The software provider reserves the right to change the scope of services described in the service description if this (i) becomes necessary due to legal or official requirements, (ii) ensures interoperability or (iii) serves to ensure uniform adaptation to technical progress, provided that this does not result in any restrictions for the services used by the customer.
(4) The software provider shall notify the customer in writing of any significant changes affecting a core functionality or the functionality of the service in good time prior to the change. If changes are made to the detriment of the customer, the customer may terminate the contractual relationship within four weeks of receipt of the notification of change for the time at which the change takes effect. In the notification of change, the software provider shall inform the customer of his right of termination.
(5) The software provider shall perform regular backups.
5 Obligations of the customer to cooperate
(1) The customer shall create all prerequisites within its sphere of operation that are necessary for the proper execution of this contract, in particular the technical prerequisites listed in the service description. Insofar as the software provider provides the customer with storage space, the customer is solely responsible for the stored content.
(2) The customer is obliged in particular within the scope of his duty to cooperate,
a) to keep the access data assigned to the customer, including the Space Key, secret, in particular not to pass them on to third parties and to keep them protected against access by third parties and loss, and to change them immediately or have them changed by the software provider if there is reason to suspect that unauthorized third parties have gained knowledge of them (ATTENTION: The Space Key – and with it all data available in the Space – cannot be restored if the Space Key is lost);
b) not to interfere with or damage the software and its functionalities;
c) not to misuse the access to and the software itself;
d) to take reasonable precautions to prevent unauthorized access by third parties to the software using the customer’s terminal equipment; in particular, the customer shall only use terminal equipment that complies with the state of the art and the relevant statutory and official regulations;
e) not to infringe any third-party rights, in particular industrial property rights (e.g. copyrights and trademark rights);
f) not to transmit or refer to any content that contains defamatory statements or other illegal or immoral content or that could damage the reputation of the software provider;
g) to check its data and information for viruses before transmitting it and to use state-of-the-art virus protection programs or to oblige the whistleblowers accordingly;
h) to oblige all users authorized under this contract to comply with the provisions of this contract for the contractual use of the services;
i) to notify the software provider immediately of any circumstances of which it becomes aware which impair or may impair the function of the services;
j) in the event of termination of the contract, to back up all messages and data stored in the software using the export function up to a maximum of 7 days before termination of the contract, as the customer will no longer be able to access this data after termination of the respective contractual service and the software provider will generally not have access to the data due to the encryption of the Spaces.
(3) If the customer culpably breaches one of its obligations regulated in this contract, the software provider is entitled to take all necessary and appropriate measures to remedy the situation.
(4) The customer is obliged to indemnify the software provider and its representatives and subcontractors against all third-party claims (including the costs of defending against claims) that are based on culpable, unlawful use of the service by the customer (or with the customer’s approval), or arise from data protection, copyright or other legal disputes associated with the use of the services in breach of contract. If the customer recognizes or must recognize that there is a threat of unlawful use, there is an obligation to inform the software provider immediately. The customer is responsible for proving that he is not responsible for the infringement.
6 Compensation
(1) The fees to be paid by the customer for the provision of the service are set out in the contract and the price list valid at the time the order is placed. The fees shall be invoiced. A reclaim of the fees is excluded.
(2) The basic fee shall be invoiced for twelve months in advance. Invoices are due for payment without deduction and, unless otherwise stipulated in this contract, within fourteen days of the invoice date. In case of doubt, invoices shall be deemed to have been received three working days after the invoice date.
(3) If the customer is in default of payment, the software provider may demand default interest at the applicable statutory default interest rate. This shall not affect the assertion of further rights. The Software Provider shall be entitled (i) in the event of default in payment of a not insignificant amount or (ii) after the expiry of three days after receipt of a reminder, to interrupt the services for the duration of the non-payment.
(4) Subject to an expressly deviating regulation, all amounts stated are net amounts, i.e. plus the statutory value added tax. The software provider shall state the tax rate and the amount of VAT separately on the invoice.
(5) Objections to invoices must be raised and substantiated by the customer in writing to the address stated on the invoice within ten days of receipt of the invoice. The undisputed part of the invoice must be paid by the due date of the invoice.
(6) In addition, the Software Provider may increase the remuneration with advance notice, in particular in the event of further technological development, the expansion of the services offered by the Software Provider or increased purchase prices. The increase shall take effect at the earliest one month after the date of notification. If recurring remuneration (e.g. monthly, quarterly, annual) has been agreed, the remuneration may be increased at the earliest twelve months after the initial conclusion of the contract. Within the notice period, the customer has the right to terminate the service contract affected by the increase for the services affected by the increase at the earliest on the date on which the new prices come into force if the increase exceeds 50 percent of the last valid subscription price.
(7) Services outside the agreed scope or subject matter of the contract shall be remunerated separately by the customer. The applicable rates of the software provider shall apply.
(8) The customer can also pay invoices by SEPA direct debit. If a fee cannot be collected, the customer shall bear all costs incurred by the software provider as a result, in particular bank charges in connection with the return of direct debits and comparable charges, to the extent that the customer is responsible for the event triggering the costs.
7 Claims in the event of defects
(1) The software provider undertakes to ensure the functionality and operational readiness of the software in accordance with the provisions of this contract.
(2) The customer must report any defects to the software provider in writing. The customer shall only have claims for defects if reported defects are reproducible or otherwise verifiable and insofar as the service is used in accordance with the contract and in particular in the contractually intended environment of use. Defects in the software shall be rectified by the software provider following corresponding notification of the defect by the customer within the response and recovery times specified in the Service Level Agreement (“Service Level”). The same applies to other disruptions to the ability to use the software.
(3) A reduction of the remuneration can only be claimed with regard to such defects that have been expressly notified by the customer in writing or by e-mail, stating the defect and the circumstances of its occurrence. A reduction is excluded in the case of merely insignificant defects. The parties also agree for the avoidance of doubt that a reduction shall not be considered if service levels are met.
(4) The customer’s right of termination due to non-granting or late granting (in whole or in part) of use or withdrawal of use in accordance with Section 543 (2) sentence 1 no. 1 of the German Civil Code (BGB) is excluded.
(5) § 7 shall not apply to support and other services within the meaning of § 611 et seq. BGB.
(6) All claims for defects by the customer shall expire within twelve months of the product (or the updates or upgrades) being made available, unless the software provider has fraudulently concealed the defect. The statutory limitation period for claims for damages by the customer due to defects remains unaffected.
(7) Claims for defects in cloud services shall be governed by the law on defects in rental contracts.
a) The customer may not enforce a reduction in payment by deducting it from the agreed payment. Corresponding claims for enrichment or damages shall remain unaffected.
b) The customer’s right to terminate the contract for failure to grant use in accordance with Section 543 (2) sentence 1 no. 1 of the German Civil Code is excluded unless the establishment of use in accordance with the contract is deemed to have failed.
c) Strict liability for claims for damages already existing at the time of conclusion of the contract is subject to the limitations of “§ 9 Liability”.
8 Confidentiality, data protection
(1) The parties undertake to protect all confidential information of the other party obtained prior to and in the course of the performance of the contract for an unlimited period of time in the same way as their own comparable confidential information, but at least to treat it confidentially with reasonable care. “Confidential information” is all information which the software provider or the customer protects against unrestricted disclosure to third parties or which is to be regarded as confidential according to the circumstances of disclosure or its content. In any case, the following information shall be deemed confidential information of the Software Provider: All software, programs, tools, prices, data or other materials that the Software Provider makes available to the Customer pre-contractually or on the basis of the contract.
(2) The software provider shall ensure that employees entrusted with the processing of confidential information are bound to secrecy.
(3) The software provider may only obtain knowledge of confidential information to the extent that this is necessary for the provision of the contractual services.
(4) The Customer authorizes the Software Provider to engage subcontractors who may access Confidential Information if the requirements of this Section 8 are met. The subcontractor must also be bound to confidentiality, and the contractual agreements between the Software Provider and the subcontractor must at least meet the requirements of this contract. The software provider shall remain responsible for the services and its subcontractors and in particular for ensuring that they keep the confidential information strictly confidential.
(5) The software provider shall take and maintain appropriate technical and organizational measures to protect the confidential information, at least as described in the document on commissioned data processing (available on the website https://www.parlabox.pro/agb-avv/parlabox-avv/). The software provider undertakes to protect confidential information appropriately in accordance with adequate security standards. The level of security must not be less than that required to protect its own confidential information.
(6) The confidentiality obligation shall also apply after termination of this contract.
(7) The customer shall comply with the applicable data protection regulations.
(8) Insofar as the customer collects, processes or uses personal data, the customer warrants that it is authorized to do so in accordance with the applicable provisions, in particular those of data protection law, and shall indemnify the software provider against claims by third parties in the event of a breach.
(9) Insofar as the software provider processes the customer’s personal data on behalf of the customer, the provisions on order processing (AVV) at https://www.parlabox.pro/agb-avv/parlabox-avv/ shall apply; the AVV is valid without signature because it is part of our GTC.
(10) Insofar as the customer and software provider jointly decide on the purposes and means of processing personal data in accordance with Art. 4 No. 7 GDPR, the regulations on joint responsibility (VGV) at https://www.parlabox.pro/agb-avv/parlabox-vgv/ apply; the VGV is valid without signature because it is part of our GTC.
9 Liability
(1) The Software Provider shall be liable without limitation for damages caused by gross negligence or intent on the part of the Software Provider, its legal representatives or vicarious agents. The Software Provider shall also be liable without limitation for damages resulting from culpable injury to life, limb or health.
(2) The software provider shall only be liable in cases of simple negligence in the event of a breach of essential contractual obligations, the breach of which jeopardizes the purpose of the contract and on the fulfilment of which the customer could rely. This liability is limited to compensation for damages that were typically foreseeable at the time the contract was concluded.
(3) The above limitations of liability shall also apply in favor of the legal representatives and employees of the Software Provider and shall also apply in the event of pre-contractual or tortious liability.
(4) The liability of the software provider for damages in accordance with the Product Liability Act remains unaffected by this.
(5) In the event of data loss, the liability of the software provider is limited to the reimbursement of the costs incurred for the recovery of the data from electronic backup media. The customer’s obligation to regularly back up data in accordance with the state of the art remains unaffected.
(6) The no-fault claim for damages pursuant to Section 536a (1) Alt. 1 BGB is excluded.
(7) All liability claims of the customer against the software provider shall become time-barred – unless otherwise stipulated in this contract – within one year after the claim has arisen and the customer has become aware of the circumstances justifying the claim against the software provider or should have become aware of them without gross negligence. This does not apply to the claims named in paragraphs (1) and (4).
10 Contract term, termination
(1) This contract shall enter into force upon receipt of the order confirmation from the software provider.
a) The access data shall be transmitted to the customer or the users created for the customer as soon as the software has been made available in the productive environment.
b) The contract is concluded for the period stated therein. If no term is specified there, a contract term of twelve months shall apply. If neither party terminates the contract with three months’ notice to the end of the contract term, the contract shall be extended by twelve months.
(2) The right to extraordinary termination (without notice) in accordance with the statutory provisions remains unaffected. Extraordinary termination of this contract is only possible for good cause. Termination can only be declared after a warning and the setting of a reasonable grace period to remedy the situation, unless success is not to be expected or the relationship of trust is so permanently disturbed that immediate termination of the contract appears justified.
(3) Good cause exists for the software provider in particular if a) the customer becomes insolvent or b) the continuation of the contract is not possible due to sanctions or export control regulations.
(4) If there is good cause, the software provider is authorized to block the customer’s access authorization to the software with immediate effect.
(5) Any termination must be in text form (§ 126b BGB).
(6) Upon termination of the contract, the customer’s right to use the services shall end. The software provider shall be entitled to delete the customer data remaining on its servers after termination of the respective contractual service upon expiry of a 14-day period after termination of the contractual service. The customer may agree with the software provider to make the data available for the period after termination (provided that the space key is available). Any costs incurred for this will be invoiced separately to the customer. In the event of termination without notice by the Software Provider, the following § 10 (7) shall apply in deviation from this paragraph.
(7) If the Software Provider terminates the contract without notice, the Customer shall be obliged to export its data, which was transmitted to the Software Provider in connection with the service or collected, processed or used by the Software Provider on behalf of the Customer, immediately, at the latest within 14 days of receipt of the notice of termination. If the customer’s access authorization has already expired, the customer is obliged to arrange an appointment with the software provider immediately so that the export can take place within the aforementioned period. After expiry of this period, the software provider is entitled to delete the customer data remaining on the servers.
11 Final provisions
(1) Amendments to this contract must be made in writing to be effective. This also applies to the amendment of this written form requirement.
(2) This contract shall be governed by the laws of the Federal Republic of Germany with the exception of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980.
(3) The parties agree that Münster shall be the exclusive place of jurisdiction for all disputes arising from and in connection with this contract, provided that the customer is a merchant within the meaning of the German Commercial Code or the customer does not have a registered office in the Federal Republic of Germany when the action is brought.
(4) The invalidity of individual provisions of this contract shall not affect the validity of the remaining provisions. In this case, the parties undertake to agree on effective provisions that come closest to the intended economic purpose of the invalid provisions. This applies accordingly to the closing of any loopholes in this contract.
(5) In the event of contradictions between the German and English versions of this contract, the German version shall prevail.
(6) The Software Provider shall be entitled to amend these Terms and Conditions in accordance with the following provision: the amended Terms and Conditions shall be made available to the Customer no later than two months before the proposed date of their entry into force. The Customer may either agree to or reject the amendments before the proposed date of their entry into force. The customer shall be deemed to have given its consent if it has not notified its rejection before the proposed date of entry into force of the changes. The software provider shall specifically point out this approval effect to the customer when informing him of the planned changes.
