General Terms and Conditions of Contract
1. Subject of the contract
The following terms and conditions (the “General Terms and Conditions of Contract”) apply to the use and operational support of standard software programs (the “Software”), which are produced by Johari GmbH, hereinafter referred to as the Provider, and are provided to the Customer as a Software-as-a-Service via the Internet.
The subject matter of the Agreement:
- the provision of software programs listed at www.johari-solution.eu for use via the Internet and
- the storage of customer data on servers of the computer centre
Individually developed software programs are not subject of this contract.
The software is operated by the provider as a SaaS or cloud solution. The customer is enabled to use the software stored and running on the servers of the provider or a service provider commissioned by the provider via an Internet connection for his own purposes during the term of this contract and to store and process his data with their help.
These contractual conditions apply exclusively. Contract conditions of the customer do not apply. Counter-confirmations of the customer with reference to his own terms and conditions are expressly contradicted.
2. Nature and extent of the service
The Provider shall make the software available to the Customer for use in the agreed version at the router exit of the computer centre where the server with the software is located (“transfer point”). The software, the computing power required for its use and the required memory and data processing space are provided by the Provider. The Provider does not owe the establishment and maintenance of the data connection between the Customer’s IT systems and the described transfer point.
The provider grants the customer the right to use the software both on business and private devices.
3. Availability of the software
The provider draws the customer’s attention to the fact that restrictions or impairments to the services provided may arise which are beyond the provider’s control. This includes in particular actions of third parties not acting on behalf of the provider, technical conditions of the internet not influenceable by the provider as well as force majeure. The hardware, software and technical infrastructure used by the customer can also influence the services of the provider. Insofar as such circumstances influence the availability or functionality of the service provided by the Provider, this has no effect on the contractual conformity of the services provided.
The customer is obliged to report functional failures, malfunctions or impairments of the software to the provider immediately and as precisely as possible in accordance with the agreements in the order sheet.
4. Data processing rights, data protection
The provider adheres to the legal data protection regulations.
For the purposes of implementing the contract, the customer grants the provider the right to copy the data to be stored by the provider for the customer, insofar as this is necessary for the provision of the services owed under this contract. The Provider is also entitled to store the data in a failure system or separate failure computer centre. In order to eliminate failures, the Provider is also entitled to make changes to the structure of the data or the data format.
The provider regularly saves the customer’s data on the server for which the provider is responsible in encrypted form on an external backup server.
If and to the extent that the customer processes or allows personal data to be processed on IT systems for which the provider is technically responsible, the order data processing agreement must be taken note of. The order data processing agreement can be found here.
A support case exists if the software does not fulfil the contractual functions. The type of error message is determined by the order sheet, as is the scope of the support services.
If the customer reports a support case, he shall provide a description of the respective malfunction that is as detailed as possible in order to enable the most efficient error correction.
The parties may conclude a separate agreement on the provision of support, maintenance and servicing services.
The provider has the possibility to outsource maintenance and support to third parties.
The payment period and the amount of the remuneration as well as the method of payment are based on the offer.
If the customer delays the payment of a due remuneration by more than four weeks, the provider is entitled to block access to the software after prior reminder with setting a deadline and expiry of the deadline. The Provider’s claim for remuneration remains unaffected by the blocking. Access to the software will be reactivated immediately after the arrears have been settled. The right to block access shall also exist as a milder remedy if the Provider has a right to terminate the contract for cause in accordance with Section 11.2.
After expiry of the initial term in accordance with the offer, the Provider may adjust the prices as well as the rates for an agreed remuneration in accordance with the general price development. If the increase in remuneration amounts to more than 5%, the Customer may terminate the contractual relationship at the end of the current contractual month.
The remuneration for other services is based on the offer.
7. Obligations of the customer
The Customer shall support the Provider in providing the contractual services to a reasonable extent.
In order to use the software, the system requirements resulting from the offer must be fulfilled at the customer’s premises. The customer himself is responsible for this.
The customer must keep the access data made available to him secret and ensure that any employees to whom access data are made available also do so. The service of the Provider may not be made available to third parties, unless this has been expressly agreed by the parties.
In principle, the legal regulations on warranty apply. The §§ 536b (knowledge of the tenant of the defect at the conclusion of the contract or acceptance), 536c (defects occurring during the rental period; notification of defects by the tenant) BGB apply. However, the application of § 536a para. 2 (right of the renter to remedy defects himself) is excluded. Also excluded is the application of § 536a para. 1 BGB (liability for damages of the landlord), as far as the standard provides for liability regardless of fault.
9. Liability and compensation
The provider is liable for damages of the customer, which were caused intentionally or grossly negligently, which are the consequence of the absence of a guaranteed quality, which are based on a culpable violation of essential contractual obligations (so-called cardinal obligations), which are the consequence of a culpable injury to health, body or life, or for which a liability according to the product liability law is provided, according to the legal regulations.
Cardinal obligations are such contractual obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner may regularly rely, and whose violation on the other hand endangers the achievement of the purpose of the contract.
In the event of a breach of a cardinal obligation, the liability – insofar as the damage is based only on slight negligence – is limited to such damage that must typically be expected to occur when using the contractual software.
Otherwise, liability – regardless of the legal basis – is excluded.
10. Customer data and exemption from third party claims
As a technical service provider, the provider stores content and data for the customer, which the customer enters and stores and makes available for retrieval when using the software. The customer undertakes towards the provider not to post any criminal or otherwise absolutely or in relation to individual third parties illegal content and data and not to use any programs containing viruses or other malicious software in connection with the software. The customer remains responsible for personal data and must therefore always check whether the processing of such data on the use of the software is supported by corresponding authorisation certificates.
The customer is solely responsible for all content and processed data used and for the legal positions that may be required for this. The provider does not take note of the customer’s contents and does not check the contents used by the customer with the software.
In this context, the Customer undertakes to indemnify the Provider from any liability and any costs, including possible and actual costs of legal proceedings, if claims are made against the Provider by third parties, including employees of the Customer personally, as a result of alleged acts or omissions of the Customer. The Provider shall inform the Customer about the claim and, as far as legally possible, give the Customer the opportunity to defend the asserted claim. At the same time, the Customer shall immediately provide the Provider with all information available to him on the facts of the case which are the subject of the claim in full.
Any further claims for damages of the provider remain unaffected.
11. Duration and termination of the contract
The term of the contract shall depend on the offer.
Both parties reserve the right to terminate the contract for good cause if the legal requirements are met. An important reason for the Provider is especially given if the Customer is more than two months in arrears with the payment of a due remuneration despite a reminder. If the Customer is responsible for the reason for termination, the Customer is obliged to pay the Provider the agreed remuneration less any expenses saved by the Provider up to the date on which the contract would end at the earliest in the event of ordinary termination.
Unless otherwise specified in the offer the regular notice period is 12 weeks to the end of the contract term. If the contract is not terminated by either party, it will be automatically renewed for the previous term. Declarations of termination must be in text form to be effective. Compliance with this form is a prerequisite for the effectiveness of the termination. Fax and e-mail do not meet the written form requirement.
After termination of the contract, the Provider shall return to the Customer all documents and data carriers provided by the Customer and still in the possession of the Provider in connection with the present contract and shall make available to the Customer and delete the data stored by the Provider, as far as no storage obligations or rights exist.
The parties are obliged to keep permanently secret, not to pass on to third parties, record or otherwise use all information about the respective other party which they have become aware of or become aware of in connection with this contract and which is marked as confidential or which is identifiable as business and trade secrets (hereinafter referred to as “confidential information”) on the basis of other circumstances, unless the respective other party has expressly agreed to disclosure or use in writing or the information must be disclosed on the basis of law, court decision or an administrative decision.
The Information shall not be considered confidential information within the meaning of this Section 12 if:
- it was already known to the other party in advance without the information being subject to an obligation of confidentiality
- it is generally known or without violation of the assumed confidentiality obligations transpire
- the other party without breach of any confidentiality obligation by a third party be revealed
The obligations under this clause 12 shall survive the end of this Agreement.
13. Transfer of rights and obligations
The assignment of the rights and obligations arising from this contract is only permitted with the prior written consent of the Provider. The Provider is entitled to entrust third parties with the fulfilment of the obligations arising from this contract.
The Customer authorises the Supplier to use the name and logo of the Customer on the Supplier’s website for reference purposes within the Johari Solution. This permission is also valid in terms of trademark law and shall survive the end of this agreement.
This Agreement and any amendments thereto, as well as all contract-relevant declarations, notification and documentation obligations, must be in writing, unless another form is agreed upon or required by law.
The contract shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods. The place of jurisdiction is the registered office of the supplier, as far as the customer is a merchant, a legal entity under public law or a special fund under public law.
The German version of the General Terms and Conditions shall take precedence over translated versions.
Should individual provisions of this agreement be invalid, the validity of the remaining provisions shall not be affected. In this case, the parties shall cooperate to replace invalid provisions by such provisions that correspond as closely as possible to the invalid provisions.