Terms of Service
Last update: January 11th 2024
Modification of Terms of Service
We may make
changes to these Terms of Use from time to time. When we do, we will
revise the “Last updated” date given above. It is your
responsibility to review these Terms of Service frequently and to
remain informed of any changes to them. The then-current version of
these Terms of Service will supersede all earlier versions.
Now therefore the parties agree as follows:
1. Definitions and Interpretations
I. "Customer" refers to the entity that has ordered services
from Abowire GmbH, Belzinger Str 69-71, 10823 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”).
II. "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. Custom
agreements with the Customer may have specific cancellation
terms.
III. "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.
IV. "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.
V. "Data" - if used in connection with
the Customer - means the data from the Customer's service
environment provided by the Customer and its endusers.
VI.
"Order Document" means the Order (Purchase Order) signed by the
parties.
If you have any questions about these Services
Terms, please contact
legal@abowire.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.
3. Support
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.
6. Indemnification
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 may permit, via online registration at
https://abowire.com
or after mutually agreement with the customer, 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 or the period of days agreed with the customer in
the order document.
8. Term of Agreement
I. Services provided under this Software as a Service agreement
shall be provided for the period defined in the Order 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 Order
Document, shall end. The Agreement is initially valid for 12 months
and is extended for successive periods of twelve (12) months unless
terminated by either Party at the latest three (3) months before
expiry of the respective term, unless otherwise stated in the Order
Document.
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. The Customer acknowledge that it
must be registered in the OSS Scheme to use the tax calculations of
Abowire. If the customer is not in the OSS Scheme it can manually
define the tax rate they should charge.
VI. 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.
10. Confidentiality
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.
12. Miscellaneous
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
I. In
performing the services, Abowire will comply with the Abowire
Privacy Policy, which is available at
https://abowire.com/privacy.html
and incorporated herein by reference. The Abowire Privacy Policy is
subject to regular updates at Abowire’s discretion; however, Abowire
policy changes will not result in a material reduction in the level
of protection provided for Data during the period for which fees for
the Services are paid.
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:
I. The wilful or grossly negligent
infringement of the rights of third parties.
II. Publishing
content that is defamatory, obscene, threatening, hateful,
offensive, vulgar or insulting
III. 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.
IV. Unsolicited mass mailing of e-mails, "junk mail",
"spam" or chain letters, infringement of intellectual property
rights of third parties.
V. 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.
20. Tools
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.