The following agreements govern the provision and use of the Mobility Management Software Comovee (Software) by sysware GmbH (sysware) to business customers (Customer) for business purposes as the sole binding legal basis. Any purchasing terms of the buyer which contradict or deviate from these will not form part of the contract, even if we do not explicitly contradict them.
1 General contract
- With Comovee the Customer receives the technical possibility and permission to access a hosted software application (Comovee) by telecommunication (Internet connection) and to use the functionality of the software application that is part of this agreement. To this end, sysware makes Comovee available for use for the Customer and legitimate users.
- When sysware has delivered to the Customer software supplied by another producer, the General License Terms and Conditions of the respective producer apply.
- In case of discrepancies between the German language version and other versions of these conditions, only the German version shall prevail.
- Different Terms and Conditions of the Customer shall not apply even if sysware does not expressly object.
2 Duties and Obligations
The Customer agrees to provide the obligations regulated in this contract, in particular:
- To pay the price for the use of Comovee specified in the contract on time and according to paragraph 9 of this agreement.
- To designate the administrators and contact persons at contract conclusion and to protect his account and his Customer password from unauthorized access and not to disclose it to third parties. The end user himself must enter into this agreement.
- To ensure that all intellectual property rights are respected.
- Not to misuse Comovee or cause it to be used abusively, in particular not to transmit information with illegal or immoral content or to refer to such information that promotes sedition, induces criminal offenses or glorifies or trivializes violence, is sexually offensive or pornographic, is apt to seriously endanger the moral welfare of children or juveniles of affect their general welfare, or that could damage the reputation of sysware and Comovee.
- The provision and maintenance of the necessary terminals as well as a suitable data cable to use the software, its configuration and technical state match the current requirements of sysware.
- The Customer supports sysware in the contract performance to the extent required and free of charge.
Sysware is committed to provide the services specified in this contract against payment, in particular:
- To provide the software in accordance with the agreed range of functions and to maintain it available for use.
- To ensure the availability of support, whereby possible problems and software errors, caused by defective products of sysware or their infrastructure, will be corrected free of charge. All other services are charged separately to the Customer from the first minute according to the current hourly rate of sysware for Comovee. The hourly rate is €105 for each hour or part of an hour plus VAT.
- Sysware performs regular maintenance between 1am and 5am CET. This maintenance will not be announced to the Customer. Other maintenance will be announced to the Customer with an appropriate period of notice. During maintenance, the software is not available or only partially available. In this context, the annual availability of at least 98% is defined.
- If sysware performs an update or upgrade of the software, it will be made available to the Customer free of charge. Sysware provides regular updates.
- The customization of software and consulting services shall not be owed by sysware. The services of sysware particularly do not include provision and maintenance of the network connection, as well as the required hardware and software on the Customer’s side.
3 Contractual Object
Sysware offers the use of Mobility Management software for the duration of the contract. The range of functions must remain at least that at the time of the conclusion of the contract for the duration of the contract.
4 Utilization Rights
- The copyright and all other ancillary rights in the software belong exclusively to sysware or the respective owners. If the rights belong to third parties, sysware has corresponding exploitation rights.
- Sysware grants the Customer, as well as the users created by him, during the term of the contract a non-exclusive right to access the software via the Internet and to use it in this way. The aforementioned utilization right also applies to all upgrades and updates.
- The Customer is not allowed to transfer the granted right to third parties or allow third parties to use the software in any other way.
- The Customer agrees to use the Software solely for his own purposes and does not make it available to others than the created users. Use for the purposes of affiliated companies requires the prior consent of sysware.
5 Provision of Services
- The technical implementation of the performance is at sysware’s discretion, provided that the implementation is carried out in conformity with the provisions of these conditions.
- Sysware has the right to make changes to the agreed services, if it becomes absolutely necessary by legal and / or regulatory conditions. Sysware will inform the Customer in advance about the changes with an appropriate period of notice.
- Sysware has the right to make changes to the agreed services as far as the scope of services for the Customer is not restricted, and the Customer will not incur any additional costs.
- Sysware has the right to update and develop the software.
- Sysware may delegate the performance of the services to vicarious agents.
6 Availability, Restrictions of Service, Security, Force Majeure
- Sysware allows to use the software 24 hours, 7 days a week. Thereby sysware grants a minimum availability of 98% on an annual average.
- The availability is owed up to the transfer point. Transfer point is the router output of sysware’s data center.
- Due to unspecified predictable and controllable simultaneous accesses to the server by the client and other contractors of sysware, other certain circumstances over which sysware has no control or influence there may temporarily be delays, disorders and / or interruptions in access to the software. The system must provide sufficient performance for the licensed number of users.
- Also because of technical modifications to the systems of sysware, maintenance, updates or upgrades that are necessary for proper or improved operation, failures may occur.
- The same applies to downtime due to
• force majeure,
• Faults of the Customer, its employees or vicarious agents,
• unavoidable service impairments due to changes in the service, which were ordered by the Customer, or have become mandatory by legal or regulatory requirements.
- The Customer should be aware that sysware has no influence on
• whether via the Internet transferred data may be noted by third parties,
• the transmission rates of the Internet that are possible,
• what specific line paths data from sysware takes and whether solutions, servers and routers operated by other vendors are operational at all times.
- Sysware uses from its point of view technically and economically feasible ways to make the software available as secure as possible. This includes in particular the protection from unauthorized access by encrypted transmission of the input data and the maintenance of acceptable safety standards. The Customer however acknowledges, that a complete protection against damaging data is not possible.
- In cases of force majeure, sysware shall be released from the duty to perform its contractual obligations for the duration of the effects. Force majeure is any event which is beyond the control the respective contract partner as well as any unforeseeable event by which the respective contract partner is wholly or partially hindered the provision of services.
- Cases of force majeure are in particular governmental measures and malfunctions not indebted by sysware. A fault in the operation of the application in the area of responsibility of a data center service provider used by sysware does not fall within force majeure and sysware is held responsible.
7 Obligations of the Customer
- The Customer provides sysware all the information necessary to fulfill the order.
- He is obligated to enter his as well as the users’ data fully and correctly upon registration. In the event of changes the data should be updated immediately.
- The Customer also has to create the technical conditions in order to enable sysware to provide its services as ordered.
- The Customer agrees to
• follow appropriate instructions, in particular to protect passwords from unauthorized access,
• immediately report any faults to sysware and to support sysware with failure analysis and remedial by accurately describing problems, informing sysware completely, providing necessary data and granting it appropriate time for failure remedial, to use the software appropriately.
- The Customer further agrees to refrain from
• allowing the use of the access by third parties, except employees of the Customer, without prior written consent of sysware,
• disturbing and/or breaking the function and/or integrity of the software, technical facilities, programs and/or software of third parties and/or of sysware against their will or compromising the security by the means of the access.
- If the Customer is a custodian of professional secrets, he agrees to obtain consent of affected persons, insofar as he is required by law or by contract.
- If the Customer does not meet the above requirements, thereby incurred costs and / or expenses can be billed to the Customer, should he be at fault.
8 Duration of Contract
- The Customer may terminate the contract with a period of three months, but at the earliest on expiry of the contract period.
- Sysware is entitled to terminate the contract with a period of three months, but at the earliest on expiry of the contract period.
- If the contract is not terminated in accordance with the aforementioned provisions, it will be extended for another 12 months.
- If the Customer chooses another software application with a new number of licenses, the change is immediately effective, with the result that for the new software application a new term begins.
- Termination for important reason shall mutually be unaffected. An important reason exists, in particular, if the other party breaches its contractual obligations due to gross negligence and despite a written warning and/or deadline. An important reason is especially given if the Customer is in default with the payment of fees or substantial portion thereof and does not pay the fee after a reminder within a reasonable period or if a request to open insolvency proceedings over the assets of the Customer is filed and/or such an insolvency proceedings have been opened.
- If the contract is terminated for important reason by sysware because of a culpable violation of the Customer, the Customer is obliged to compensate sysware for the damage resulting from the extraordinary termination.
- Terminations must be in writing. The contract may also – in the absence of written form – be terminated via the administration interface of the software if this option is available as part of the software.
- 14 days after termination of the contract, sysware deletes all Customer data, in particular those of the users and the data entered by them. This does not affect legal retention requirements.
- For the services provided by sysware the Customer pays the agreed fee in EUR. Fees are payable annually in advance. The fee does not yet include the legal VAT, in so far it is incurred.
- Unless otherwise agreed, invoices are immediately due for payment.
- Invoices are sent electronically to the client. If the Customer requests sending of invoices by mail, sysware can charge a fee for this.
- Fee settlements of sysware shall be deemed approved by the Customer, if they are not objected to within 30 days of the invoice date, stating the reasons. The objection must be in writing. To comply with the period, it is sufficient that the objection is sent in a timely manner.
- Charges and other costs associated with the payment of the fee shall be borne by the Customer.
- Sysware ensures that the software conforms to accepted rules of technology and is not affected by errors that may offset or impair the value or suitability for the normal use or use as laid down in the agreement. An insignificant reduction of possible use is not considered. The agreed range of functions and the described condition of the software is guaranteed.
- Warranty is excluded for a functional impairment of the software, which is due to incorrect operation by the Customer or not proper environmental conditions on the part of the Customer.
- In case of legal deficiencies the Customer informs sysware immediately in writing about claims by third parties and leaves sysware exclusive control over the defense and related activities, insofar as this is reasonable for the Customer. The Customer grants sysware the necessary support, information and power of attorney to perform these actions.
- The Customer agrees not to recognize any claims in relation to legal deficiencies, without the prior written consent of sysware.
- The rights under mandatory statutory provisions shall remain unaffected by the above provisions.
- For all damages caused intentionally by sysware or its vicarious agents, sysware shall be liable without limitation.
- As far as sysware offers telecommunication services to the public, the following rules apply for financial losses:
For financial losses of the Customer that are caused intentionally by sysware or its vicarious agents, sysware shall be liable up to an amount of 12,500 euros per claim. Regarding the entirety of all damaged parties, the liability of sysware is limited to 10 million euros per event causing damage. If the compensation, that is payable to several parties due to the same event, exceeds the upper limit, the damages shall be reduced in the same proportional rate as the difference between the total amount of claims and the upper limit.
- Moreover sysware shall be liable without limitation for damages caused by gross negligence of sysware, its legal representatives or executive employees. If such damage is solely caused by minor negligence of sysware, its legal representatives or executive employees, sysware shall only be liable for the violation of essential contractual obligations (cardinal duties), whereby its liability is limited to the foreseeable damage typical of the contract. Essential contractual obligations are those for which the conclusion of contract was made and in whose compliance the respective contractual partner especially could rely.
- Subject to the provisions of items 11.1 and 11.2 sysware shall only be liable for vicarious agents that do not belong to their legal representatives or executive employees, if those culpably violated contractual obligations (cardinal duties). In this case the liability of sysware is limited to the foreseeable damage typical of the contract.
- If the backup is not within the contractual service catalog of sysware, the Customer is responsible for regular backup of his data. In the event of data loss caused by sysware, sysware is therefore only liable for the costs of copying the data from the backup copies to be produced by the Customer and also for the restoration of the data, which would have been lost even if the data were properly backed up.
- The strict liability of sysware for damages under § 536 BGB (German Civil Code) for existing defects upon conclusion of contract is excluded. Items 11.1 to 11.5 shall remain unaffected.
- All other liability shall be excluded regardless of its legal basis.
- The liability under the Product Liability Act and other mandatory statutory regulations remains unaffected by the above regulations.
12 Compliance with Legal Regulations, Property Rights of Third Parties, Exemption, Suspension
- Regarding input and retrieval of data and information the Customer agrees to comply, upon input and retrieval of data and information, with statutory and regulatory provisions, in particular of the data protection law, the criminal law, copyright and/or any other provisions of intellectual property rights and to not infringe the rights of third parties.
- Sysware will immediately inform the Customer in the extent permitted by law if third parties or authorities enforce an argument to it or evidence comes to be known that a violation of statutory and/or regulatory requirements or a violation of any rights of third parties attributable to the Customer attributable exists.
- The Customer will release sysware from any liability based on a breach of duty by him and support sysware to the best of his/her abilities in the legal defense.
- This obligation even exists when the breach is committed by a user standing in the Customer’s responsibility.
- If the charge of sysware with the violation of the law is based on data or other information made available online by the Customer or by sysware at the instigation of the Customer violates copyright, trademark and/or other intellectual property rights of third parties, sysware may require from the Customer that the latter accepts any amount of compensation and cost of appropriate legal defense, provided that sysware is not partially liable.
- The above obligations will not exist if the Customer is not responsible for the breach of duty.
- An authorization for temporary lock of the software system for safety is maintained. The Customer will be immediately informed about it.
- Additionally sysware is entitled to lock if after one warning the Customer is in arrears with a not negligible amount, whereby a default of payment in the amount of a net of at least 125 euros is considered as essential. The lock is made 24 hours after the Customer has been notified about the lock. After payment, the lock is released.
- Sysware is entitled to lock accounts with damaging content. The Customer is notified about it whenever possible.
- In case of a lock the Customer remains committed to continued payment of the agreed fee.
13 Data Backup
- The Customer agrees to back up his data before entry into the software and to verify the proper backup of files.
- Sysware performs regular updates of Customer data, at least once a week. The backup saves the current state of the data, so that in the event of data loss recovery according to the stored state can be performed.
- Sysware and the Customer agree themselves, their employees and other vicarious agents to maintain the confidentiality of all information obtained still to be obtained within the scope of the contractual relationship under the contract and designated as confidential or in the circumstances be considered confidential information. The fact that there is a contractual relationship between the parties, is not a confidential information.
- This obligation shall continue after termination of the contract.
- The obligation of confidentiality shall not apply to any information that
• is traceable known by or is made available to the recipient of the information before being notified by the other party;
• is notified to the information receiver demonstrably lawfully by third parties that are not subject to confidentiality after being notified by the other party;
• are a result of publications or otherwise basic commons in the specialist world or have become after being notified.
- Notwithstanding the aforementioned provisions, each party shall be entitled to meet their legal obligations to provide information in terms of the information provided to it.
15 Data Protection and Confidentiality of Telecommunications
- Sysware and the Customer agree to comply with the applicable data protection regulations and to preserve the secrecy of telecommunications.
- The Customer is himself responsible for obtaining the necessary consents from his contractual partners. If the Customer collects, processes or uses himself or with the help of sysware personal data, he is committed to comply with data protection regulations and, in the event of a breach he will release sysware of any third party claims.
- The Customer remains solely responsible under data protection law for the data entered. Sysware does not control the data entered on their legal admissibility. Such control is the sole responsibility of the Customer.
- The Customer as the responsible body is responsible for the protection of the rights of the individuals affected. The rights of the individuals affected are therefore fulfilled towards the Customer. Sysware will assist the Customer in the performance of his duties, provided that the Customer asks sysware in writing and that the Customer refunds sysware the costs incurred by supporting.
- The Customer is entitled to request access to the premises of sysware for the purpose of monitoring compliance with the data protection regulations. The Customer agrees to bear its own costs and those of sysware that arise during the implementation of control.
- Sysware provides free support (standard) by email to the authorized users of the Customer during their business hours. Requests are usually answered within two business days.
- Sysware provides free support (standard) by email or phone to the administrators of the software system during their business hours. Requests are usually answered within one business day.
- The Customer can book further support.
17 Browser Support
- The following browsers are supported:
Latest stable versions of Mozilla Firefox, Google Chrome, Safari, Microsoft Edge.
18 Free Trial
- Sysware grants Customers a one-off limited time free trial account, in order to try out the features and functions of the software.
- Sysware reserves the right to change or cancel the trial account without giving reasons.
- The software is provided in accordance with the current state of development without support and warranty claim.
- Customer agrees that sysware may include Customer’s name and logo in a list of Comovee customers, online or in promotional materials. Customer also agrees that sysware may verbally reference Customer as a customer of the Comovee products or services that are the subject of this Agreement.
- Customer may revoke the reference with written notice to the other and a reasonable period to stop the use.
20 Applicable Law, Place of Performance, Place of Jurisdiction, Contract Language
- The law of the Federal Republic of Germany applies to all legal relationships between the parties to the exclusion of the UN Sales Convention.
- The place of fulfillment is the headquarters of sysware.
- The place of jurisdiction for all disputes and proceeding from or in connection with this Agreement, including its effectiveness, shall be Düsseldorf (Germany), even if the Customer has no permanent residence in the Federal Republic of Germany. Any exclusive place of jurisdiction shall remain unaffected.
- The contract languages are German and English.
21 Final Provisions
- Verbal agreements do not exist.
- If individual provisions are invalid, the validity of the remaining provisions shall remain unaffected.
- Changes and/or additions to the contract must be in writing. This also applies for an amendment of this writing need.
- With the reservation detailed in item 5.5, the contractual partner may only assign his rights and obligations to a third party with prior written consent of the other party. Such consent cannot be refused unreasonably.
- Business days are all days from Monday to Friday.
- Business hours are Monday through Friday between 9:00 and 17:00 Central European Time (CET). Excluded are public holidays observed throughout Germany and holidays of the Federal State of North Rhine-Westphalia.
Date: 01 December 2018 (1.7)