§ 1 Scope
(1) These General Terms and Conditions of Business (GTC) shall apply to all business relations between fodjan GmbH, Großenhainer Straße 101, 01127 Dresden (hereafter “fodjan“) as the provider of specific software services by means of Software as a Service and the customer (hereafter “User“) for time-limited use of these services.
(2) These GTC apply exclusively. The User’s General Terms and Conditions of Business that diverge from, contradict or supplement these shall form part of the contract only if and insofar as fodjan has expressly consented to their application. This requirement for consent shall apply in each case, for example even if fodjan, knowing of the User’s GTC, performs the services due without reservation.
(3) In each case individual agreements concluded with the User (included collateral agreements, supplements and amendments) on a case-by-case basis shall take precedence over these GTC. A written contract or written confirmation from fodjan shall be authoritative for the content of such agreements.
(4) Relevant legal declarations and notices with which the User has to provide fodjan after conclusion of contract must be in writing in order to be effective.
§ 2 Subject of the contract, conclusion of contract
(1) The subject of this contract is transfer of the latest version of fodjan’s software (hereafter “Software”) for use of its functionality via the Internet, by means of a web browser or fodjan’s app on the User’s mobile terminal device, including the provision of storage space on fodjan’s servers (hereafter also referred to as “Service”). Fodjan shall install the Software on a server for this purpose, which the User can access via the Internet.
(2) The Software’s current scope ensues from the latest performance specification on the website at https://fodjan.de, or within the app. fodjan shall continuously develop the Software and will improve this with continuous updates and upgrades.
(3) Conclusion of a contract outside fodjan’s Internet offer shall take place according to the respective agreements concluded by the parties on the basis of fodjan’s offer, or a contract agreed by the parties in writing.
(4) If a contract is concluded via the Internet, fodjan is making a binding offer with presentation of the software, including provision of the possibility of concluding a contract. The contract shall come into being through the customer accepting the offer for the Software product in question by clicking on the corresponding order button. The User shall receive a confirmation by e-mail immediately after the User has placed the order.
(5) In the case of recourse to the Service via fodjan’s app, provision thereof for download in the respective app store represents a binding contractual offer, which the User accepts by downloading the app and agreeing to these General Terms and Conditions of Business. fodjan shall make available a free version of the app. There is furthermore the possibility of switching to a chargeable version from within the free version. Before concluding a contract for use of the chargeable version, the User shall receive notification of the applicable costs and other relevant details within the app. Only after this will there be an option to avail oneself of the chargeable version by clicking the corresponding confirmation button.
§ 3 fodjan’s obligations
(1) fodjan shall be obliged to make the Software under clause 2 (1) available and accessible to the User. This obligation is fulfilled if the Service is available to the User for an average of 99% per month (30 days).
(2) fodjan shall also provide the User with the volume of storage on its server required for contractual use of the Service.
(3) fodjan shall grant the User a non-exclusive right of online use of the Service, limited to the term of this contract, including the reproductions necessary for contractual use. Necessary reproduction includes loading the software into the server’s RAM, but not installation or storage, even temporary, of the software on the User’s data carriers. The Software will not be physically transferred to the User. Use of the Service shall be restricted to the contractually agreed number of people. The User shall not be authorized to make fodjan’s Service available for use to third parties free of charge or for a fee. The User shall be expressly prohibited from subletting the Software.
(4) fodjan shall correct errors which occur in the Software within an appropriate timescale depending on the technical possibilities. A software error is in particular present if all or part of the functions mentioned in the performance specification are unavailable or the software cycle uncontrollably terminates.
(5) fodjan shall provide the User with operating instructions in the form of a Help function within the Service or separate electronic documentation, which the User calls up online and can print out as required.
(6) fodjan shall not be obliged to provide the Software on a proprietary server. The involvement of subcontractors does not, however, release fodjan from its sole obligation to the User to fulfill the contract in full.
(7) The User has the option of storing data which the User can access in connection with use of the transferred software on the servers used by fodjan. The User itself is responsible for compliance with retention periods under commercial and tax law. If, within the scope of this contract, the User processes personal data, the User is responsible for compliance with data protection provisions. fodjan shall process the personal details transmitted by the User only within the scope of the User’s instructions.
(8) fodjan shall take the necessary technical and organizational safety precautions and measures to protect its systems. fodjan shall in particular protect the services and systems to which it has access and the User’s data stored on fodjan’s server against unauthorized attention, storage, modification or other unauthorized or third-party access. For this purpose fodjan shall take suitable and customary measures appropriate to the state of the art, in particular regular updates, protection against malicious programs and otherwise safeguard its installations, including against burglary.
§ 4 User’s obligations
(1) The User shall undertake to establish a data connection between the hardware the User provides for use of the Service and the data handover point defined by fodjan (IT centre router outlet). The same shall apply to installation and operation of the access software required by the User (Internet browser, app).
(2) The User must take precautions against unauthorized third-party access to the Software. The User shall also be obliged to keep its access data secret from unauthorized third parties and to store it safe from their access, so that third-party abuse of the access data is impossible. The personal password must be changed at regular intervals.
(3) The User shall not be permitted to re-engineer, modify, reproduce or decompile the Software if not permitted by sections 69d, 69e German Copyright Act (Urheberrechtsgesetz).
(4) Notwithstanding fodjan’s obligation under clause 3 (8), the customer shall be responsible for inputting, securing and updating the data and information required to use the Service.
(5) The User shall be obliged to notify fodjan immediately of defects in the Service, in particular the Software, describing the time at which it happened and the detailed circumstances.
§ 5 fodjan’s rights of use
(1) Only the Customer shall be authorized to dispose of the application data stored by the User in the storage space intended for it. This concerns the data generated by the User through use of the Service and/or the data required for use of the Service.
(2) Initially the User shall grant fodjan the right to store the content stored on the server and to make it accessible to the User via the Internet when requested, in particular to reproduce and transmit it for this purpose and to reproduce it for the purposes of data security.
(3) The User shall furthermore grant fodjan a non-exclusive, temporally and spatially unlimited, free right to use the application data, in particular for the purpose for improving and developing the Service. The exclusion to this is personal details, to which clause 3 (7) applies.
§ 6 Remuneration
(1) As the User chooses, the remuneration for the services to be rendered is to be paid on submission of invoice at the intervals offered by fodjan. Invoices must be paid within 14 days of invoice without discount.
(2) fodjan shall be entitled to amend the agreed prices for the contractual services to offset rises in personnel and other costs, on provision in writing or by e-mail of two months’ notice at the start of the following month. The User shall have the right to terminate the contract within a period of one month from notification in writing. Fodjan will bring this right of termination to the user’s notice in conjunction with every notification.
§ 7 Liability
(1) fodjan shall be liable for intent or gross negligence only. Fodjan shall be liable for slight negligence only in the event of violation of an obligation whose fulfillment facilitates due and proper execution of the contract in the first place and on whose observance the User may routinely rely (“cardinal duty”). Any other liability for compensation for damages of any kind, on whatever grounds, including liability for culpa in contrahendo, is excluded.
(2) In the case of liability for slight negligence, fodjan’s liability shall be limited to the damage which, when it occurs, it should have typically expected according to the circumstances known on conclusion of contract.
(3) In the case of data loss caused by simple negligence, fodjan shall be liable only for the loss that would have been incurred even in the event of due and proper, regular data security appropriate to the data’s importance; this limit shall not apply if the data security was impeded or impossible for reasons for which fodjan was responsible.
(4) The preceding exclusions and limitations of liability shall not apply if fodjan has assumed a guarantee for the services’ properties, nor to damages that are to be compensated according to the German Product Liability Act (Produkthaftungsgesetz), nor to injury to life, limb or health.
(5) The preceding exclusions and limitations of liability shall also apply in favor of fodjan’s employees, vicarious agents or other third parties that fodjan uses to fulfill the contract.
(6) fodjan shall not assume responsibility for the content of content generated by the User. Fodjan is under no obligation to verify the content supplied for its legality.
(7) Should the content stored by the User on the storage space forming the subject of the contract contain legal violations, the User shall exempt fodjan from all resulting claims and shall bear the resulting costs. This shall also cover the costs of legal defense.
§ 8 Right of amendment
Unless already specifically governed otherwise, fodjan shall be entitled to amend or supplement these contractual terms as follows: fodjan will notify the User in writing of the amendments or supplements at the latest six weeks before they take effect. If the User does not agree to the amendments or supplements to the contractual conditions, it can object to the amendments within one week of the date on which it is intended that the amendments or supplements will take effect. The objection must be effected in writing. If the User does not object, the amendments or supplements to the contractual conditions shall be deemed to have been approved by the User. fodjan will specifically draw the User’s attention to the intended significance of its actions with notification of the amendments or supplements to the contractual conditions.
§ 9 Duration, termination
(1) The contract shall be concluded for an unspecified term. It may be terminated by either party on compliance with a due notice period as of the end of the month. The notice period shall correspond to the payment period chosen by the User (§6 (1)). Termination shall be effected in writing. Irrespective of this, in the event of free use for test purpose granted the User for a limited time, the contract shall cease on expiry of the respective agreed test period, unless the User decides to continue the user contract for a fee, to which the provisions of these General Terms and Conditions of Business shall also apply.
(2) The right to termination for good cause shall remain unaffected. Good cause shall in particular be present if the User culpably violates its obligations arising from the contract and it is unreasonable for fodjan to wait for the notice period to expire.
(3) After termination of the contract, on request fodjan shall hand over to the User the content and data stored by the User on fodjan’s server if the User assumes the essential costs occasioned by this. Handover shall take place by transfer of a file on a data carrier or by transmission over the Internet, as fodjan chooses. Clause 5 (3) of the GTC shall remain unaffected.
§ 10 Concluding provisions
(1) Assignment of claims is permitted only with the other contracting party’s prior written permission. Permission must not be refused unreasonably. The regulation contained in Section 354a German Commercial Code remains unaffected by this.
(2) A right of retention can only be asserted due to counterclaims arising from the respective contract.
(3) The contracting parties can only offset claims that are final and unappealable or uncontested.
(4) Should individual provisions of the parties’ agreements be or become partly or wholly void, the effectiveness of the remaining provisions will not be affected. In this event the parties undertake to replace the void provision with an effective one which most closely approaches the economic purpose of the void provision. The same shall apply to any lacunae in the agreements.
(5) The law of the Federal Republic of Germany shall apply.
(6) The place of jurisdiction shall be Dresden if the User is a merchant, legal entity or special fund under public law.