Software as a Service (SaaS) – Terms and Conditions
Last updated: 01.11.2023
§ 1 Scope of Application
- These Software as a Service (SaaS) - Contractual Terms (hereinafter "Contractual Terms") are used by the provider, Mainteny GmbH, Rheinsberger Str. 76/77, 10115 Berlin (hereinafter “Provider”).
- The Provider has developed the software MAINTENY (hereinafter referred to as "Software") and offers it to its customers for use via the Internet.
- The offer of the Provider for the use of the Software is exclusively directed to traders in the sense of § 14 German Civil Code (Bürgerliches Gesetzbuch, BGB).
- A contract between the Provider and the Customer (as defined in the Order Form) for the use of the Software subject to these Terms and Conditions is concluded upon signature of the corresponding Order Form. The legal relationship between the Provider and the Customer is based exclusively on these contractual Terms and Conditions, including the provisions referred to herein, as well as the underlying Order Form, including any attachments. General terms and conditions of the Customer are excluded. This also applies if the Customer confirms the conclusion of the contract with reference to his terms and conditions and/or the Provider does not expressly object to the inclusion of the Customer's terms and conditions.
§ 2 Subject of the Contract
- The subject matter of the contract is the provision of the possibility of using the Provider's Software to the Customer as software as a service ("SaaS") or cloud offering via the Internet against payment of a fee limited in time to the term of the contract.
- The Provider only owes the transfer of the functions and features of the Software as they result from the Order Form including any attachments as well as the adaptation to the respective state of the art.
- The Provider reserves the right, without giving rise to any claim on the part of the Customer, to provide an updated version of the Software . The Provider shall inform the Customer about updated versions and corresponding usage instructions electronically and make them available. Updated versions may differ from the previous version in appearance and functionality. The time and scope of changes leading to a new version of the Software will be determined by the Provider. The Provider also has the right to make updates and upgrades if these serve technical progress or appear necessary to prevent misuse. In addition, the Provider is entitled to change the Software if applicable law requires such changes, the changes are beneficial to the Customer, and the changes are of a purely technical or procedural nature and do not have a material impact on the Customer. If justified interests of the Customer are significantly impaired by the changes to the Software, the Customer has a special right of termination.
- The Customer acknowledges that based on the current state of the art it is impossible to produce complex software products completely free of errors. The Provider therefore does not owe the complete freedom from errors of the Software, but only the freedom from such errors that restrict the use of the Software in a significant way.
- Adaptation of the Software to the needs of the Customer is not owed. Services such as the development of Customer-specific solutions or any necessary adjustments to the Software require a separate agreement. The Provider may also at its own discretion at any time regulate the access and use of new functionalities of the Software in a separate agreement and agree on the payment of additional remuneration.
- The instruction of the Customer in the use of the Software is not owed, unless it is the subject of a separate agreement between the Provider and the Customer.
- The Provider may use the assistance of third parties for the provision of all contractual services and/or have the services provided in whole or in part by a third party.
§ 3 Provision of the Software and Availability; Fault Management
- The Software is hosted on a server infrastructure licensed by the Provider. The Provider shall make the Software available to the Customer for use at the router exit of the data center where the server with the Software is located (the "Delivery Point") at the time of the commencement of the contract as defined in the Order Form and shall transmit the required access data to the Customer in electronic form. Furthermore, the Provider shall send the Customer user documentation in electronic form after conclusion of the contract. The user documentation can also be viewed at any time during use of the Software and can be downloaded in a common format.
- The Customer is responsible for the Internet connection between the Customer and the data center and the hardware and Software required for this (e.g. PC, network connection). A prerequisite for the use of the Software at the Customer's site is also a common, state of the art browser in the current version.
- The app component of the Software is made available to the Customer via the Apple App Store and the Google Play Store. The Customer shall install the App on the end devices itself in accordance with the instructions of the respective App Store operator. Delays in the provision of the Software by the App Stores are not the responsibility of the Provider and can therefore not be asserted against the Provider.
- The Software is offered subject to availability. Availability means the ability of the Customer to use all main functions of the Software. The average availability of the Software is 98% on an annual average. The decisive factor is the availability of the Software at the transfer point. Not included in the calculation of availability are (i) the regular maintenance windows, which can be up to 4 hours per week and are usually carried out between 10:00 p.m. and 4:00 a.m. Central European Time, (ii) periods of unavailability due to mandatory unscheduled maintenance work necessary to eliminate malfunctions, and (iii) periods of unavailability due to circumstances beyond the control of the Provider, in particular force majeure.
- The Provider makes daily backups and stores them for a period of seven days. Monitoring of the basic functions of the Software is performed on a daily basis.
- The Customer shall immediately report any malfunctions to the e-mail address specified under § 10. If the Customer has selected a corresponding module when placing the order, the Customer may also receive telephone support via the Provider's hotline (§ 10). Troubleshooting is guaranteed Monday to Friday (excluding national holidays and public holidays in Berlin) between 9:00 a.m. and 6:00 p.m. (support hours). Serious malfunctions (the use of the Software as a whole or a main function of the Software is not possible) will be remedied by the Provider also outside the service hours at the latest within 2 hours from receipt of the report of the malfunction - provided that the report is made within the support hours. If it is foreseeable that it will not be possible to remedy the malfunction within this period of time, the Provider will inform the Customer of this immediately and notify the Customer of the expected exceeding of the period of time. Other significant malfunctions (main or secondary functions of the Software are disturbed but can be used; or other not only insignificant malfunctions) shall be remedied within 12 hours at the latest during the support hours. The elimination of insignificant malfunctions is at the discretion of the Provider.
§ 4 Scope of Use and Rights of Use
- The Software will not be physically transferred to the Customer.
- The Software may only be used by the Customer within the scope of its own business activities by its own personnel and only for the purposes agreed in these Terms and Conditions and in the Order Form including any attachments. Subject to the successful conclusion of the contract and payment of the agreed fee, the Provider grants the Customer the non-exclusive and non-transferable right to use the Software during the term of the contract by means of access via a browser to the extent agreed in these Terms and Conditions and in the Order Form including any attachments for the intended purpose and in accordance with applicable laws. All intellectual property rights in and relating to the Software remain with the Provider unless expressly granted to the Customer. Unless expressly agreed otherwise, the granting of rights of use does only apply to the country in which the Customer has its place of business.
- Any use of the Software by the Customer beyond the contractually agreed use requires the prior written consent of the Provider. In particular, but not conclusively, the Customer may not
- use the Software beyond the agreed scope of use or have it used by third parties or make it accessible to third parties;
- modify, decompile, disassemble, reconstruct or otherwise edit the Software;
- use the Software to develop a competing software solution or help a third party do so;
- use the Software to distribute illegal and/or infringing content; and/or
- sell, license, rent, transfer or in any other way commercially exploit the Software.
- The Customer may only duplicate the Software to the extent that is covered by the intended use of the Software in accordance with the applicable module specification. Necessary duplication within the scope of use as SaaS include loading the Software into the main memory on the server hosted by the Provider, but not even temporary installation or saving of the Software on data carriers (such as hard disks or similar) of the hardware used by the Customer.
- In the event of a breach of this § 4 by the Customer, all rights granted under these Terms and Conditions automatically revert to the Provider. Any further use of the Software by the Customer thereafter constitutes a copyright infringement. In addition, the Provider reserves the right to delete infringing content as well as content containing viruses or other harmful components and/or to terminate the services provided hereunder.
- The Provider is entitled to take appropriate technical measures to protect against non-contractual use. If there are concrete indications that the use is not in accordance with the contract, the Provider reserves the right to discontinue or restrict the provision of services or to take other appropriate measures. The Customer is entitled to have the access authorization and the access possibility reinstated, provided that he has proven that he has ceased the use in breach of contract and has prevented future use in breach of contract.
- After termination of the contract, the rights of use automatically end without the need for a corresponding declaration by the Provider.
§ 5 Duties of the Customer
- The Customer is obliged to prevent unauthorized access by third parties to the protected areas of the Software by taking appropriate precautions. For this purpose, the Customer shall, to the extent necessary, instruct its employees to comply with copyright law. The Customer shall protect access authorizations assigned to it as well as identification and authentication information from access by third parties and shall not disclose them to unauthorized persons.
- It is the responsibility of the Customer to properly maintain and service the Software and hardware environment of the Software on the mobile device that is not covered by the contract. The Customer shall protect the hardware and Software in particular against unauthorized access by employees or other third parties, viruses, Trojans and other malware. The Customer is obligated to check his data and information for viruses or other harmful components before entering them and to use state-of-the-art virus protection programs for this purpose.
- The Customer is solely responsible for content and data uploaded by him within the scope of using the Software. The Customer must ensure that the content and data do not infringe the rights of third parties.
- The Customer shall indemnify the Provider upon first demand against all claims, litigation, losses, damages, expenses, costs (including court costs and reasonable attorneys' fees) and liabilities arising out of or in connection with (i) Customer's use of the Software and (ii) any breach of any Customer obligation set forth in these Terms and Conditions.
- In the event of an aforementioned assertion of claims by third parties, the Customer shall provide the Provider with all information necessary for the examination of the claim and for the defense against this claim. The Customer shall provide the information promptly, truthfully and completely.
- The Customer shall make backup copies of the data transmitted to the Provider on its own data carriers in order to enable the reconstruction of the data and information in the event of loss.
- The contents stored by the Customer on the storage space intended for him within the scope of the SaaS use may be protected by copyright. The Customer hereby grants the Provider the right to make the content stored on the server within the scope of the SaaS use accessible to the Customer during the Customer's queries via the Internet and to store and transmit it for this purpose, in particular, as well as to reproduce it for the purpose of data backup.
§ 6 Remuneration
- The Customer undertakes to pay the Provider a remuneration for the provision of the Software during the term of the contract, which consists of an annual usage amount depending on the number of Registered and Active Units (as determined in the Order Form) and the costs for any additional modules selected by the Customer.
- The annual usage amount is based on the number of Registered and Active Units. Registered and Active Unit means a technical installation (e.g. elevator, escalator) that is part of a current service contract between the Customer and a third party. The number of Registered and Active Units is determined at the beginning of the contract and updated at the end of a current contract period for the following renewal period.
- The remuneration is due at the beginning of a contract period and payable in advance. It will be invoiced at the beginning of the contract for the agreed minimum term and thereafter at the beginning of each renewal period for the renewal period. If the number of Registered and Active Units on the last day of a contract period exceeds the number determined at the beginning of the contract period by more than 10%, the Provider may recalculate the annual usage amount retroactively to the beginning of the contract period and invoice the Customer separately for the difference from the amount already paid in advance. Invoices are sent exclusively to the Customer's e-mail address specified in the Order Form. Invoices are payable within 30 days of receipt.
- All prices are subject to the applicable statutory sales tax.
§ 7 Warranty, Liability
- The Software essentially complies with the provisions of these Terms and Conditions and the Order Form including any appendices. In the case of update, upgrade and new version deliveries, the claims for defects are be limited to the innovations of the update, upgrade or new version deliveries compared to the previous version status.
- In principle, the statutory provisions on warranty in rental agreements apply. The regulations in § 536b of the German Civil Code (“BGB”) (knowledge of the tenant of the defect upon conclusion of the contract or acceptance) and in § 536c BGB (defects occurring during the rental period; notification of defects by the landlord) apply. However, the application of § 536a (2) BGB (tenant's right of self-remedy) is excluded. The application of § 536a (1) BGB (Landlord's liability for damages) is also excluded insofar as the standard provides for strict liability. In all other respects, the provisions of the law on service contracts (§§ 611 et seq. BGB) apply.
- In the following cases, the Provider is be liable for damages or reimbursement of futile expenses to an unlimited extent and in accordance with the statutory limitation periods:
- if the Provider caused the damage intentionally or through gross negligence,
- in the event of personal injury for which the Provider is responsible,
- if the supplier has given a corresponding guarantee and
- if claims of the supplier exist according to the German Product Liability Act.
- In cases of simple negligence, the Provider is liable in the event of a breach of material contractual obligations by the Provider or one of its legal representatives or vicarious agents for the foreseeable damage that was to be prevented by the breached obligation. An essential contractual obligation is an obligation the fulfillment of which makes the proper execution of this contract possible in the first place or the violation of which endangers the achievement of the purpose of the contract and on the observance of which the Customer can regularly rely.
- In all other cases, the liability of the Provider, its legal representatives and its vicarious agents is excluded, i.e. in particular in cases of force majeure (incl. strikes, natural disasters, pandemics) and in the event of simple negligent breach of non-contractual obligations. The Provider is not liable for the loss of data to the extent that the damage is due to the Customer's failure to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
- The Provider does not warrant that any business expectations of the Customer associated with the use of the Software will be realized. Likewise, the Provider does not assume any additional warranty for the Software without explicit confirmation.
§ 8 Term and Termination
- The contractually agreed services will be provided from the start of the contract specified in the Order Form.
- A minimum term of twelve (12) months applies to the paid use of the Software with annual billing. During this minimum term, premature ordinary termination is excluded on both sides. After expiry of the minimum term, the contract will be extended by twelve (12) months ("extension period") unless it is terminated in writing at least thirty (30) days before expiry of the minimum term or an extension period.
- The right of each party to terminate the contract without notice for good cause and the right to terminate the contract in accordance with § 2 (3) (Customer's special right of termination in the event of changes to the Software by the Provider and significant impairment of the Customer's legitimate interests) remains unaffected.
- The Customer can send the cancellation by mail to Mainteny GmbH, Rheinsberger Str. 76/77 10115 Berlin or by e-mail to email@example.com.
- Upon termination of the User Agreement, the Provider shall hand over the stored data to the Customer as an export file and is subsequently entitled to block the Customer's access to the Software and to delete all Customer content and other Customer data.
- Upon request, the Provider shall support the Customer in backing up its data files. After termination of the contract, the Customer will generally no longer be able to access these data files, if only for reasons of order processing. Upon expiry of one month after the end of the contract – or earlier at the request of the Customer – the Provider shall finally and completely delete the Customer data, unless this conflicts with statutory retention obligations on the part of the Provider. The Provider is only obligated to release the Customer data in a different manner (e.g., regarding time, format or migration) if this is separately contractually agreed and remunerated.
§ 9 Scope of Services and Software Package Specifications
- The services rendered under this agreement are provided in three tiers of software packages: Starter, Professional, and Premium, each with a varying array of functionalities and features suited to different operational requirements. The ensuing table (Table 1) delineates the full spectrum of features encompassed within each package tier. Clients are urged to peruse the specifications to ascertain the congruity of the selected package with their business exigencies.
|Invoicing (incl. overdue notice)||✓||✓||✓|
|Work reports & checklists||✓||✓||✓|
|Mobile App for technicians||✓||✓||✓|
|Customer specific prices||✓||✓||✓|
|Article order functionality||✓||✓||✓|
|Integrations to vendors||✕||✕||✕|
|Reporting of malfunctions||✓||✓||✓|
|Basic data onboarding||✕||✓||✓|
|Enterprise data onboarding||✕||✕||✓|
|Premium customer support||✕||✓||✓|
§ 10 Data Protection and Confidentiality
- When using the Software, the Customer is responsible for compliance with the data protection regulations affecting him.
- Within the scope of the use of the Software, the Provider shall process personal data of the Customer, for which the Customer is responsible, as intended on the Customer's behalf. The parties hereby agree on the validity of the order processing agreement (Art. 28 General Data Protection Regulation (GDPR) (Datenschutzgrundverordnung, DSGVO)), which is available on the website of the Provider at [www.mainteny.com/privacy-policy/] and which defines the existing obligations and rights of the parties in the context of the order processing.
- The Parties undertake not to disclose any knowledge of know-how, trade secrets and other confidential information and data of the respective other party that becomes known to them in the course of the contract initiation and implementation and in connection with the contract, in particular also regarding the Registered and Active Units, as well as the existence and content of the contractual relationship between the Parties ("Confidential Information") for the duration of the contractual relationship and for a period of time, in particular not to make Confidential Information available to third parties without the prior, express, written consent of the respective disclosing party and to apply the same protective measures as they apply in their own affairs. In the absence of such consent, the Confidential Information may only be used for the execution of the contract and in anonymized form for system improvement.
- The foregoing obligations do not apply to Confidential Information that
- were already evident or known to the other party at the time of their transmission by one party;
- have become apparent after their transmission by one party through no fault of the other party;
- have been made accessible to the other party by a third party in a non-illegal manner and without restriction with regard to confidentiality or exploitation after their transmission by one party;
- developed by one party independently, without use of the other party's Confidential Information;
- required to be disclosed by law, governmental order or court order, provided that either party promptly notifies the other party thereof and assists such party in defending such order or order; or
- to the extent that a party is permitted to use or disclose the Confidential Information on the basis of mandatory legal provisions or on the basis of the contract.
- With respect to Provider's Confidential Information, the Customer is be responsible for providing evidence of the foregoing privileges.
- The Confidential Information at all times remains the property of the respective disclosing party. The other party shall return the Confidential Information (together with all copies) to the disclosing party or, upon request of the disclosing party in text form, destroy it within thirty (30) days and confirm the destruction in text form.
- Irrespective of any claims for damages, the parties undertake to pay a contractual penalty for each individual case of culpable breach of these contractual conditions. The amount of the contractual penalty will be determined by the party affected by the breach in each individual case at its reasonable discretion and may be reviewed by a competent court in the event of a dispute.
§ 11 Hotline
- The Provider establishes a point of contact for the Customer ("Hotline"). The Hotline will process inquiries of the Customer exclusively in connection with the technical requirements and conditions of use of the provided Software as well as with individual functional aspects. If the Customer has selected a corresponding module in the Order Form, the Customer will also receive technical support via the Hotline in the event of malfunctions in accordance with § 3 (6).
- Inquiries are accepted by email and telephone during the Provider's normal business hours.
Phone: +49 152 51823907
- The hotline will process proper inquiries in the ordinary course of business and answer them to the extent possible. The Hotline may refer to the documentation and other training resources available to the Customer for the Software provided. If it is not possible for the Hotline to respond or to respond in a timely manner, the Provider shall - but only to the extent expressly agreed - forward the inquiry for processing, in particular inquiries regarding Software not produced by the Provider. Any further services of the Hotline, such as other response times and deadlines as well as on-call services or on-site assignments of the Provider at the Customer's premises must be expressly and separately agreed upon in writing in advance.
§ 12 Final Provisions
- The Customer is only permitted to offset claims that are undisputed by the Provider or have been legally established. The Customer is only permitted to assign or transfer claims from this contract with the Provider's consent.
- Legally relevant declarations and notifications to be made after conclusion of the contract must be made in writing to be effective.
- Verbal collateral agreements do not exist. Amendments, additions and the cancellation of the contract must be made in writing. This also applies to the amendment of this written form clause itself.
- Should individual provisions of these Terms and Conditions be wholly or partially invalid or become invalid after conclusion of the contract, this does not affect the validity of the remaining provisions. In this case, the contracting parties shall negotiate an effective and reasonable replacement provision that comes as close as possible to the meaning and purpose pursued by the invalid provision. This also applies in the event of a contractual gap.
- The contract is governed exclusively by the laws of the Federal Republic of Germany.
- The place of jurisdiction for all disputes arising from or in connection with the contractual relationship between the parties is Berlin, Germany. The place of performance is the registered office of the Provider.