GTC

General terms and conditions of contract for software-as-a-service services (Saas).

1. Material scope of application and subject matter of the contract.

The following terms and conditions (the “General Terms of Contract”) shall apply to the use and operational support of the software produced by Rukola Soft UG (haftungsbeschränkt), hereinafter referred to as “Rukola Soft”, and provided to the commercial enterprise (Customer) as a Software-as-a-Service service (SaaS service) via the medium of the Internet.

Subject of the contract are:

  • the provision of software programs (Software) listed at www.gemuese-anbauplaner.de for use via the Internet and
  • the storage of data of the customer on servers of the data center

Individually developed software programs are not the subject of this contract.

2. type and scope of the services.

The nature and scope of the mutual services are governed by the contractual arrangements. The scope of performance defined in the contract shall be deemed to be the agreed quality. Decisive for this are:

  • the defined scope of services of the software listed in the contract, which is specified in the respective user documentation,
  • the suitability for the use assumed in the contract,
  • the terms and conditions set forth in the Agreement,
  • the following conditions,
  • generally applied technical guidelines and professional standards, including in particular the international standards and proposals of the Internet Engineering Task Force (IETF) as documented in the Request-for-Comments (RFC), and the W3C (World Wide Web Consortium).

In case of discrepancies, the contractual arrangements apply in the above order.

Further conditions, in particular general terms and conditions of the contracting party shall not apply, even if Rukola Soft does not expressly object to them. The terms and conditions of Rukola Soft UG shall apply exclusively.

3. Terms of use

3.1 Rights of the customer to the software.

Rukola Soft grants the customer a non-exclusive, non-transferable, and non-sublicensable right to use the software and associated user documentation specified in the contract for the duration of the contract. The software is provided via the Internet. The transfer point for the SaaS services is the router output of the data center used by Rukola Soft to the Internet. The customer undertakes to use the software exclusively in accordance with the contract and neither to pass it on to third parties nor to make it accessible to third parties in any other way. The Customer is not entitled to “reverse engineer”, decompile, disassemble, duplicate or use any part of the Software to create a separate application.

Customer hereby acknowledges Rukola Soft as the sole licensor of the Software and the copyrights associated therewith. The rights of Rukola Soft UG as sole licensor shall also extend to any enhancements to the Software provided by Rukola Soft to the Customer unless otherwise provided in writing.

The customer hereby acknowledges the trademark, name, and patent rights of Rukola Soft UG with respect to the Software and related documentation. The customer shall not remove, alter or otherwise modify any copyright information or other similar proprietary notices in the Programs and related documentation.

3.2 Customer’s Rights to the Data.

The data collected, processed, and generated by the Software shall be stored on the servers of the Data Center. In any case, the Customer shall remain the sole owner of the data and may therefore demand that Rukola Soft surrender any or all of the data at any time, in particular after the termination of the contract, without any right of retention on the part of Rukola Soft. Data shall be surrendered by electronic transmission via a data network or, by a separate agreement, by handing over data carriers. The customer has no right to also receive software suitable for the use of the data. The responsibility for the permissibility of the collection, processing, and use of the data as well as for the protection of the rights of the persons concerned (information, use, correction, blocking, deletion) lies with the customer.

3.3 Violation of the Terms of Use.

In the event of violations of the aforementioned terms of use, Rukola Soft is entitled to terminate the contract in whole or in part without notice. In this case, Rukola Soft additionally reserves the right to assert claims for damages against the customer resulting from the action in breach of contract.

3.4 Contract duration and termination.

The minimum term for the provision of the SaaS service is 1 month. The contract period is automatically extended by another month if no notice of termination is given. The amounts will be collected from the last deposited direct debit or credit card data or transferred by the customer.

Rukola Soft is entitled to terminate for good cause, in particular in the event of failed direct debits or credit card collections.

4. Maintenance conditions and service level.

4.1 Further developments/service changes.

Rukola Soft reserves the right to further developments and changes in performance (e.g. by using newer or different technologies, systems, procedures or standards) in the course of technical progress and an optimization of performance after conclusion of the contract. In the event of significant changes in performance, Rukola Soft will notify the customer accordingly in a timely manner. If the customer suffers significant disadvantages as a result of the service changes, the customer shall have the right to extraordinary termination of the contract as of the date of the change. The customer must give notice of termination within two weeks of receiving notification of the change in performance.

If new versions of the software are provided, Rukola Soft shall grant the customer the rights listed in Section 3 accordingly also for the respective new version.

4.2 System Operation.

Rukola Soft shall ensure that the Software provided is operated in an environment and configuration suitable for the Customer’s requirements and on hardware suitable for the Customer’s intended use. This includes number and type of servers, regular backups, scalability, power supply, air conditioning, firewalling, virus checking, broadband internet connection.

Rukola Soft performs daily backups of the data files. Through a restore procedure, Rukola Soft can perform the restore of the customer’s data upon the customer’s express request.

4.3 System Availability.

The availability of the data center network at the router exit on the Internet is 99% on an annual average. The client-side connection to the Internet is the responsibility of the customer. This is not part of the SaaS scope of services. The downtime is determined in full minutes and is calculated from the sum of the fault clearance times per year. Excluded from this are those periods that Rukola Soft designates as so-called maintenance windows for optimization and performance enhancement, as well as time lost in troubleshooting due to reasons for which Rukola Soft is not responsible and outages due to force majeure.

4.4 System availability failures.

Disruptions of system availability must be reported by the customer immediately after they become known. Before reporting the fault, the customer must check his area of responsibility. In the case of fault reports received within support hours, fault clearance will begin within two hours. In the case of fault reports received outside support hours, fault clearance shall commence on the following working day. Delays in fault clearance for which the customer is responsible (e.g. due to the unavailability of a contact person on the customer side) shall not be counted towards the fault clearance time.

5. Warranty

It is not possible according to the state of the art to exclude errors in software under all application conditions. However, Rukola Soft guarantees that the software mentioned at www.saas.de is basically usable. The limitation period is one year.

Errors in the software and the associated documentation will be corrected by Rukola Soft free of charge within a reasonable period of time. A prerequisite for this claim to rectification of errors is that the error is reproducible. In order to fulfill the warranty obligation, Rukola Soft may, at its own discretion, either rectify the defect or supply a replacement. In particular, Rukola Soft may provide the customer with a new version of the software to fulfill the warranty obligation. It shall be equivalent to rectification of a defect if Rukola Soft provides an alternative solution to the defective function that allows the customer to use the software in accordance with the contract.

Warranty claims are excluded if the software is not used in accordance with the contract. Furthermore, warranty claims are excluded if the customer makes changes or enhancements to the software specified in the contract, unless the customer proves that the errors are not causally related to the changes or enhancements.

If a significant program error is not corrected by Rukola Soft in accordance with the aforementioned conditions, the customer may demand a reduction of the monthly SaaS fee. Rukola Soft has the same right if the production of the error correction is not possible with reasonable effort. If in the course of error correction it turns out that the problems are due to operating errors or improper use by the customer, Rukola Soft may demand reasonable compensation for the expenses incurred.

Rukola Soft does not guarantee the fulfillment of the customer’s individual requirements by the software specified in the contract. This applies in particular to the non-achievement of the intended economic success. Warranty claims against Rukola Soft are only entitled to the direct customer and can not be assigned.

6. limitation of liability.

  1. The liability of Rukola Soft is excluded in the case of simple negligence. This does not apply in the case of a simple negligent breach of essential performance obligations, such as availability and data security. Here, Rukola Soft shall be liable in the amount as specified in point 6.2.
  2. The amount of liability of Rukola Soft shall be limited to the contract-typical foreseeable damage in the case of simple negligent breach of essential contractual obligations.
  3. The customer has a duty to mitigate damages by:
    • making regular backups of his data records and
    • making security-relevant updates for its operating system as well as for all installed application software on the end devices used by the software.

 

  1. Supplementary shall apply that the contractual, as well as tortious liability of Rukola Soft, is limited to 100,000 EUR for financial loss, property damage, and damage to activities, and to 50,000 EUR for data loss damage, except in the case of intent and gross negligence.
  2. Supplementary shall apply that liability for loss of profit is excluded.
  3. For disruptions on telecommunications connections, for disruptions on line paths within the Internet, in the event of force majeure, the fault of third parties or the customer himself, Rukola Soft shall not be liable. Rukola Soft assumes no liability for damages incurred when the customer passes on passwords or user IDs to non-authorized persons.

7. Compensation

A monthly fee agreed in the contract will be charged for the SaaS services. The fees incurred will be invoiced in advance over a period of time.

8. Terms of payment

Payments are made by bank transfer, direct debit or credit card clearing. If the payment deadline is exceeded, services may be restricted in the event of default.

The customer is not entitled to offset claims against Rukola Soft, unless they are legally established claims or claims recognized in writing by Rukola Soft.

9. Confidentiality, data protection.

The contracting parties undertake to keep secret the knowledge gained within the scope of the subject matter of the contract – in particular technical or economic data as well as other knowledge – and to use it exclusively for the purposes of the subject matter of the contract.

This shall not apply to information that is publicly accessible or becomes publicly accessible without unauthorized action or omission on the part of the contracting parties or must be made accessible due to a court order or a law. In the event of support assistance with Customer’s problems, it may become necessary to access Customer’s records. The access can be done via a web meeting with the customer or via database analysis. This access is limited to the period of the respective support measure.

If personal data must be processed as part of the subject matter of the contract, Rukola Soft and the customer will comply with the statutory data protection provisions.

Rukola Soft draws the customer’s attention to the fact that customer data will be processed stored in accordance with the provisions of the data protection laws (in particular the General Data Protection Regulation (DS-GVO) and the Federal Data Protection Act (BDSG)).

10. Final Provisions

The place of performance is Gifhorn/Lower Saxony. The place of jurisdiction for both contracting parties is Gifhorn/Lower Saxony. The law of the Federal Republic of Germany shall apply exclusively. The contract, its supplements and amendments as well as changes in form must be in writing.

Should any provision of the contract be or become invalid, this shall not affect the validity of the remainder of the contract. The contracting parties undertake to replace the invalid provision with one that comes as close as possible to the economic intent. The same applies if a gap in the contract should become apparent.

These GTC’s were created in cooperation with the lawyer Sven Gumbrecht.

Status 14.01.2020