Now therefore the parties agree as follows:
1. Definitions and Interpretations
• "Customer" refers to the entity that has ordered services from Abowire GmbH, Kleine Präsidentenstraße 1, 10178 Berlin, Germany ("Abowire") directly or via an authorized distribution or sales partner from Abowire by ordering online or executing a document that accompanies this Abowire´s Software as a Service service Agreement (“ Agreement”).
• "Software as a Service" refers to services offered by Abowire based on the Customer's use of Abowire application programs through access via the Internet using a cloud infrastructure. The scope and functions of the services within the scope of Abowire includes recurring billing, collections, cancellations, subscription management and integration with payment providers, as described in more detail under Abowire’s home page and in product section. This also includes the technical support services to the Customer ("Support") required for this purpose and described in Section 2. The Services do not include consulting, training, and other services, unless they are expressly listed in a new Order Document or agreed separately by contract.
• "Program Documentation" means all written documentation, video tutorials for Users and other materials provided by Abowire as part of the Services.
• "Abowire application programs" means the software products in the current version (including documentation and updates) owned by Abowire, which are made available to the Customer by Abowire with access via the Internet.
• "User" refers to those persons who have been authorized to use the services by the Abowire´s Customer or Abowire's sales partners or their respective authorized representatives.
• "Data" - if used in connection with the Customer - means the data from the Customer's service environment provided by the Customer and its endusers.
• "Order Document" means the Order (Purchase Order) signed by the parties.
If you have any questions about these Services Terms, please contact email@example.com.
2. Scope of Services
I. This Software as a Service Agreement is applicable to the attached order document and online orders. The scope of services is listed conclusively in this contract.
II. The Customer shall be obliged to provide all hardware or software as well as Internet access and access that is necessary or desirable for the contractual access and use of Abowire application programs and services. Insofar as software tools (connectors, adapters, or interfaces) of third parties are used, Abowire's scope of services does not include software tools of third parties, even if such tools are described in the agreement as " supported by Abowire". Insofar as other hardware or software is provided by third parties (e.g. by system integrators or other IT companies) and such provisions are not made in due time, completely or faultlessly and, as a result, Abowire is not able to provide the services in due time or completely, Abowire shall be released from fulfilling its obligations under this agreement.
III. Support by Abowire consists of the following services:
a. Assistance via calls, mail and ticket during normal business hours on working days (except Saturdays);
b. Updates, fixes, security warnings as well as critical patch updates;
c. General Maintenance Releases, releases for individual functionalities, updates of the program documentation;
d. General customer service (non-technical questions) during normal business hours.
IV. Abowire reserves the right to change the terms and conditions for support contained herein subject to a notice period of four weeks. Such amendments may not lead to a significant reduction of the support level as long as the Customer pays the subscription fees or the respective agreed remuneration in accordance with the agreement.
I. SaaS fees: The subscription fees listed in the order document include the support fee. Therefore, the Customer will not be charged separately for the support services provided under this contract.
II. Technical contacts: The technical contacts are the users entitled to support as interfaces between Abowire and the Customer for the support of Abowire application programs. They must have basic knowledge of Abowire's application programs and, if applicable, additional knowledge for the respective phase of implementation or for certain functionalities or within the scope of a possible migration as well as regarding the interfaces of the Customer's IT environment and Abowire's application programs in order to support Abowire in the analysis and solution of support requests and to classify questions themselves. When drafting support requests, the customer technical contact person should have a basic understanding of the problem encountered and be able to reproduce the problem.
III. Abowire will evaluate the support requests of the technical contact persons in each case and may recommend special training courses which could avoid future support requests or their causes in the future. Such training measures shall be agreed separately in a contract for the provision of higher-level services and consulting services.
IV. Updates for Abowire application programs: An "update" is a regular release for Abowire application programs that Abowire provides to its Subscription Customers without additional remuneration. Updates for the Abowire application programs do not include services or programs that are provided by Abowire exclusively under separate licenses. As part of the support, Abowire will, at its discretion, provide updates of the Abowire application programs on a regular basis during the term of the agreement as soon as they are available. Abowire is not obliged, however, to develop and make available new services, additional functionalities or extensions of the programs. If and as soon as an update for a Abowire application program is made available to the Customer in accordance with these SaaS Support Policies, it shall replace the previous version of the affected Abowire application program.
V. Line of Support includes the following services: Answers to the Customer with regard to their inquiries concerning the performance, functionalities or the use and operation of Abowire application programs, answers to the Customer concerning problems or topics with Abowire application programs, error diagnoses, evaluation and error remedy or clarification of topics concerning Abowire application programs.
VI. If a diagnosis and/or solution of problems and topics is not possible despite efforts within the scope of what is economically reasonable, the Customer is entitled to ask for further support. Such Support consists of the following services: Fault diagnosis and/or evaluation of issues with regard to Abowire application programs, efforts within the scope of what is economically reasonable to eliminate reported and confirmed errors in Abowire application programs so that they essentially have the functionalities described in the program documentation.
VII. Abowire shall evaluate the support requests made and, if necessary, make suggestions for changes in the Customer's organizational and process flows. In order to define the scope and response times for further and specific Support, error messages should be classified and well described. Each error should relate to a single specific incident that is to be resolved via a separate support request (ticket). Abowire reserves the right, in consultation with the Customer, to assign an incident to a different error class if the original assignment turns out to be unsuitable.
4. Restrictions and rights granted
I. Upon acceptance of the order by Abowire and for the duration of the provision of the services, Abowire grants the Customer the non-exclusive, royalty-free, non-transferable worldwide right to use the services exclusively for the Customer's operative business under the terms of this agreement.
II. The Customer shall be entitled to grant his individual users the right to use the services for the stated purpose and shall ensure for this purpose that the users comply with the restrictions contained in this agreement.
III. Abowire is not obliged to physically deliver the Abowire application programs or to make them physically available within the scope of the services. The Customer is aware that access and use of the Abowire application programs is exclusively via the Internet. The Customer acknowledges that it does not acquire any license or rights to the Abowire application programs itself and that these are used exclusively within the scope of the provision of the services.
IV. Upon termination of the agreement or the services, the Customer's right to access and use the Abowire application programs and services described in the Order Document will be terminated.
V. The program documentation contains information as to which third-party software or hardware may be helpful or useful for the use of Abowire application programs. The Customer's right to use such third-party technologies shall be governed exclusively by the respective license terms of such third parties whose validity Abowire refers to, and not by the provisions of this Agreement.
VI. The Customer shall not be entitled:
• to remove or modify any references to the services on Abowire, references to the intellectual property of Abowire or licenses property rights.
• to make the Services available in any form to third parties for the purpose of use in operational business (unless such access is expressly permitted in the license terms).
• to modify, reverse engineer, disassemble, decompile, translate parts of Abowire's services (including the analysis of data structures or similar materials).
• to make the results of the services or performance comparison tests regarding Abowire´s application programs accessible to third parties.
• to license, sell, rent, lease, transfer or assign, distribute, make public, host, outsource, permit timesharing or other shared use of the services or Abowire application programs to third parties or to exploit them in any other way, unless expressly permitted in this agreement.
VII. The rights granted to the Customer under this contract are additionally subject to the following conditions: The rights of an authorized user of the Services (e.g. as a "Named User") are indivisible and can only be exercised by a single person (unless the license is newly granted to another Named User, in which case the previous Named User no longer has any right to access or use the Services); Except as expressly permitted herein, the Services may not be copied, reproduced, distributed, published, downloaded, disclosed, posted or transmitted in whole or in part, in any form or by any means, electronic, mechanical, recording, photocopying or otherwise; The Customer undertakes to the best of its ability to prevent unauthorized access to the services by third parties.
VIII. To the extent that Abowire provides individual programming or software development services for the Customer in individual cases, Abowire shall be entitled to all industrial and intellectual property rights, including copyrights and any patent rights. This includes all rights to the source code and object code of the software and the algorithms, analyses, diagrams, tests, reports and other documentation relating thereto, including copyright and patent rights. Regarding such developments, Abowire grants the Customer a non-exclusive, worldwide, non-transferable, temporally unlimited right of use within the Customer's group of companies.
5. Warranties and Disclaimers
I. Abowire warrants – subject to Customer`s compliance with its obligations under Section 2 and Section 4 – that the Services will be rendered in accordance with good engineering practice and in line with the standard of care and quality in place at professional IT and software companies.
II. If the services are not rendered in accordance with the stated standard of care in any month within the performance period, the Customer shall notify Abowire in writing within a maximum of 5 days after the end of the respective month or within the period stated in the order document. All claims in respect of which a notification of defects is not made in the described form within the aforementioned period shall lapse and the Customer waives such claims.
III. The services shall generally be available and ready for operation ("availability"). Abowire will use commercially reasonable efforts to make the Services available to you 24 per hours per day, 7 days per week, year-round, excluding reasonable maintenance and if the Customer fails to meet its obligations. Abowire does not warrant that the service or any part thereof, or use thereof will be error-free, uninterrupted, secure or virus free, will meet your quality and performance requirements, or will be corrected for any defects within a stipulated period pursuant to any service level agreement. The Customer understands that in using Abowire´s services, sensitive information will travel through third party infrastructures that are not under Abowire´s control. Thus, Abowire make no warranty with respect to the security of such third-party infrastructures. The Customer shall assume the entire risk of and shall not hold Abowire responsible for any alteration, compromise, corruption, or loss of service data notwithstanding any security or other measure that may be provided by Abowire.
IV. The above-mentioned warranties under this Section 5 are further excluded if defective services are due to one or more of the following circumstances: Incorrect use, utilization or combination of Abowire standard programs together with products or services of third parties; modifications of Abowire standard programs not performed by or for Abowire; use of Abowire standard programs by the Customer in contradiction to provisions of this agreement, in particular Section 4, or non-compliance with the Customer's obligations under Section 2.
I. In the event that claims are asserted by third parties against the Customer or Abowire stating that data, information, designs, software, services or material ("Material") transmitted by one party to the other infringes the intellectual property rights of third parties, the party that transmitted the Material to the other party shall assume the defense of such claims at its own expense and shall indemnify and hold harmless the other party from and against all claims, costs and damages. The indemnification presupposes and is subject to the condition that the party claimed against shall in each case comply with the following obligations:
• The party obligated to indemnify shall be promptly notified in writing, but no later than 15 days after the assertion of the claims;
• The indemnifying party shall authorize the other party to conduct negotiations with the claimant and shall allow the other party to defend and negotiate (including dispute resolution) at its own discretion.
II. The indemnifying party obliged to indemnify shall inform and authorize and support the other party to the best of its ability in the defense, negotiation, and settlement of the claims.
III. Abowire is under no obligation to indemnify Customer to the extent that a third-party infringement claim is based upon the combination of any material with any products or services provided by third parties. Furthermore, Abowire is under no obligation to indemnify Customer for infringement caused by Customer`s actions against any third party if the Services as delivered and used in accordance with the terms of the Agreement would not otherwise have infringed upon any third-party intellectual property rights.
7. Trial use of the services
Abowire permits, via online registration at https://app.abowire.com/signup , the use of certain services on a trial basis, for evaluation and non-production purposes in accordance with the provisions of this Agreement. Such services are provided at the sole risk of the Customer and are subject to the exclusion of any warranty. Abowire does not provide any support services in this respect. The trial use is limited to a maximum of 30 days.
8. Term of Agreement
I. Services provided under this Software as a Service agreement shall be provided for the period defined in the Ordering Document unless earlier terminated in accordance with the Agreement. At the end of the Services term, all rights to access or use the Services, including the Abowire Application Programs listed in the Ordering Document, shall end. Unless otherwise stated in the Ordering Document the Agreement can be terminated by each party by giving one month´s notice and the Services term shall renew for periods of one month each in case the Agreement is not terminated by either party.
II. If either party breaches a material term of the Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable Order Document under which the breach occurred for cause. If Abowire terminates the Order Document as specified in the preceding sentence, the Customer must pay within 30 days all amounts which have accrued prior to such effectiveness of termination, as well as all sums remaining unpaid for the Services ordered under the Agreement plus related taxes and expenses. Customer agrees that if Customer is in default under the Agreement, Customer may not use the Services ordered.
III. In addition to this, Abowire may immediately suspend Customer`s registration, keys, password, account, and access to or use of the Services if Customer fails to pay Abowire as required under the Agreement and does not effect the payments within ten days following notice to do so, or if Customer breaches any obligation pursuant to Section 2, 4, 6, 13 or 17 of this Agreement. Abowire may terminate the Services hereunder if any of the foregoing is not cured within 30 days after Abowire’s initial notice thereof. Any suspension by Abowire of the Services under this paragraph shall not release Customer from its obligations to make payments as set forth in this Agreement.
IV. Upon Customers request, and for a period of up to 60 days after the termination of the applicable Order Document, Abowire may permit Customer to access the Services solely to the extent necessary to retrieve a file of Customers Data in the Services environment. Customer agrees and acknowledges that Abowire has no obligation to retain Customer`s Data and that such Data may be irretrievably deleted thereafter.
V. Provisions that survive termination or expiration of this Agreement are Section 5, 10, 11, 12 and 16.
9. Fees and taxes
Customer agrees to pay for the Service in the amount specified in the Order Document and are non-refundable. The Customer shall be obliged to pay all taxes (including value-added tax) or other similar taxes, duties and levies imposed by the applicable law that Abowire must pay on the services, except for corporate taxes payable by Abowire. The Customer shall reimburse Abowire for reasonable expenses and extraordinary expenses in connection with any services Abowire may have performed at the Customer's location or company against proof. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice in their full amount without any deductions.
I. The Parties shall exchange confidential information under this Agreement ("Confidential Information"). The Parties undertake to treat as confidential the contents of the contracts concluded between them and all knowledge of Confidential Information of the respective other Party obtained in the course of the performance of the Services and to use such information only within the scope of the cooperation under this contract.
II. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
III. Confidential information shall be kept confidential for a period of 5 years after its transmission and shall not be disclosed to third parties. Confidential Information shall only be disclosed to such employees and vicarious agents who are obliged to maintain confidentiality in at least the same manner as under this Agreement. The obligation of confidentiality shall not apply in the event that one party is subject to legal, official or judicial disclosure obligations.
11. Limitation of Liability
I. Except for the misappropriation or violation of Abowire´s intellectual property rights and breach of the Customer confidentiality obligations, in no event shall either party be liable for any indirect, punitive, special, exemplary, incidental or consequential damages of any type or kind (including loss of business, goodwill, use or other economic advantage, business interruption, or any alteration, compromise, corruption or loss of customer data) arising out of, or in any way connected with our services, the documentation or use thereof or these terms, whether based on contract, tort or any other legal theory, even if advised of the possibility of such damages. If, notwithstanding this liability limitation, should we have any liability to the Customer or any third party for any damage, and except for your misappropriation of intellectual property and breach of the Customer confidentiality obligations, each party's aggregate liability under these terms shall be limited to the fees paid and payable by the Customer for our services for the six (6) months immediately prior to the event giving rise to the claim for such damage. For clarity, the above limitations shall not limit the Customer payment obligations to Abowire for the services. No claim may be pursued by the Customer more than one (1) year after the facts giving rise to such claim have arisen. This liability limitation forms an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in these terms does not fully compensate the Customer for any losses or is found to have failed its essential purpose.
II. Abowire´s liability for damage or loss shall be limited to such damage or loss reasonably foreseeable.
III. Customer shall have no rights and remedies other than those expressly set forth in this Agreement.
I. Should any provision of this contract prove to be invalid, void, or unenforceable, this shall not affect the remaining provisions of this contract. The ineffective or void provision shall rather be replaced by a provision which comes as close as possible to the economic intention between the parties and the purpose of the provision. General terms and conditions or other documents of the Customer shall not apply to the contractual relationship between the parties and this Agreement shall take precedence over such contractual terms and conditions of the Customer.
II. Amendments or supplements to this contract must be made in writing. This also applies to a waiver of the written form requirement.
13. Export control
Laws and regulations of Germany and the EU and any other relevant local export laws and regulations apply to the Services. Customer agrees that such export control laws govern access to and the use of the Services. Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from the Services will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
14. Force majeure
Neither party shall be responsible for any failure or delay caused by any force majeure circumstances, such as wars or acts of war, sabotage, hacking or cyber-attacks, fire, flood, strikes, failure of lines or the Internet, or downtime beyond the reasonable control of either party, or due to governmental action, denial of governmental or export licenses, or any other circumstances beyond the control of either party ("Force Majeure"). Both parties shall endeavor to mitigate the consequences of Force Majeure. If the Force Majeure Circumstances last for more than 30 days, either Party shall be entitled to terminate the Agreement with respect to the Services not yet performed. This shall not affect the obligation of each party to do everything necessary to mitigate the damage, nor the obligation of the Customer to make payments for services rendered.
15. Customer’s Data
II. Abowire reserves the right to provide the Services from various locations, and/or through use of subcontractors and service providers, with nor geographical limitations to apply. Unless otherwise expressly agreed, all server locations for the Abowire Application Programs are located within the European Union.
III. Abowire shall carry out data processing in the form of order data processing pursuant to Sec. 11 of the Federal Data Protection Act (BDSG). Customer undertakes to obtain any third-party consents related to its use of the Services and Abowire’s provision of the Services, including those related to the collection, use, processing, transfer, and disclosure of personal information. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Customer’s Data.
16. Further provisions
I. This Agreement does not create a company or joint venture between the Parties. Both parties are solely responsible for the payment of wages and salaries, social security contributions, taxes and insurance for their employees.
II. The Customer shall be obliged to obtain at its own expense all rights and consents of third parties that Abowire or Abowire's subcontractors require to render the services under this agreement.
III. This agreement shall be governed by the law of the Federal Republic of Germany, excluding the conflict of laws and excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes between the parties that cannot be resolved by mutual consent shall be in Berlin, Germany.
IV. The assignment of this contract to third parties as well as individual rights from this contract requires the prior written consent of the other party.
V. With the exception of the assertion of payment claims as well as claims in connection with the infringement of Abowire's intellectual property rights, all claims arising from this Agreement shall become statute-barred one year after they arise.
VI. Abowire shall be entitled to verify the scope of use of the services by the Customer itself or by third parties. In this context, the Customer shall provide Abowire with the information required for such review and provide Abowire with access to the required information. During the review, the Customer's operational processes shall be affected as little as possible. Any services utilized by the Customer in excess of the contractually granted scope shall be paid to Abowire within 30 days. If the Customer fails to comply with this obligation, Abowire shall be entitled to suspend the provision of services under this agreement and - if payment is not made within another thirty days at the latest despite a corresponding payment reminder - to terminate the agreement for good cause. Otherwise, the parties shall bear the costs of the inspection themselves.
17. Restrictions on the use of the services
The Customer will neither use the services himself in the manner described below nor allow third parties to use the services as described below:
• The willful or grossly negligent infringement of the rights of third parties.
• Publishing content that is defamatory, obscene, threatening, hateful, offensive, vulgar or insulting
• The violation of personal rights or the right to privacy of third parties or the promotion or support of racism or discrimination against certain ethnic groups.
• Unsolicited mass mailing of e-mails, "junk mail", "spam" or chain letters, infringement of intellectual property rights of third parties.
• Other violations of laws or other regulations. Abowire reserves the right to block the respective material or to restrict access to the services if Abowire becomes aware of such use in violation of the contract or the law. In this case, the Customer shall not be entitled to any rights or claims against Abowire. The Customer shall indemnify Abowire from all rights and claims of third parties resulting from a violation of the above restrictions.
18. Mention of the Customer as reference
The Customer agrees that Abowire may name the Customer as recipient of the services and use the Customer's logo in press releases as well as in sales and marketing documents and presentations, and that Abowire may create a short customer profile of the Customer for marketing purposes, which will be made available on abowire.com.
19. Third Party Web Sites, Content, Products and Services
The Services may enable Customer to add links to web sites and may provide Customer access to content, products, and services of third parties (including users, advertisers, affiliates and sponsors of such third parties). Abowire does not assume any responsibility for any third-party web sites or third-party content provided on or through the Services and Customer bears the full responsibility and all risks associated with the access and use of such web sites and third-party content, products and services.
I. Abowire uses tools, scripts, software, and utilities (collectively the "Tools") to continuously monitor and manage the Services and to enable Abowire to handle corresponding support requests. The aforementioned tools will not collect, forward or store any data from the Customer's production environment, unless absolutely necessary to process support requests or solve problems regarding the services.
II. If data is collected by the tools, this data (excluding the data from the Customer's production environment) may be used by Abowire within the scope of its portfolio and product management as well as license management. The Customer undertakes neither to obtain access to the tools nor to use them, nor to use them after termination of the agreement (including backups).
21. Statistical information
Abowire shall be free to collect, compile and evaluate statistical information with regard to the performance of the services and to make such information publicly accessible, always provided that such information does not reveal the Customer's data and/or make the Customer's company identifiable and/or disclose confidential information. Abowire shall be entitled to all copyrights and other rights to such information.