Preamble
LINKANDO offers various services as "Software as a Service ("SaaS") solutions based on the customer's use of the Linkando standard software. The platform is accessed via the Internet using a cloud infrastructure. One of these SaaS solutions is the product Verband-Digital ("SaaS solution"), which is marketed via the website www.verband-digital.de.
The customer intends to use the SaaS solution based on the Linkando standard software and has obtained information about its scope of services.
LINKANDO will make the SaaS solution permanently available on the Internet and operate it for its customers.
1. basics
- LINKANDO provides the agreed operating and maintenance services exclusively on the basis of and in accordance with the provisions of these Terms of Use and their annexes. The customer's general terms and conditions do not apply. This also applies if Linkando
- The following annexes to these terms of use exist
2. scope of the operating services
- LINKANDO operates the Platform and makes it available for retrieval and use on the Internet, whereby the usability of the overall functionality and not that of the individual modules and functions is essential. The agreed availability of the Platform is set out in the SLA(Annex 1). If no availability is specified in the SLA, a minimum availability of 98% shall apply during the contractually agreed operating and service times. Maintenance times and times in which the contractor carries out unplanned maintenance work after giving at least six hours' notice are not included in the availability. Overall, the hosting of the Platform, ensuring stable, high-performance and trouble-free operation and continuous availability on the Internet, the technical maintenance of the Platform, the integration of the data and content provided by the Customer and the protection of such data and content against loss and unauthorized access are among the essential tasks of LINKANDO.
- The services include a high-performance connection of the platform to the Internet and ensuring that the platform (including all subdomains) can be accessed without interruption or disruption. The services also include the daily backup of the content and data of the platform. LINKANDO will set up a sufficient number of password-protected online accesses to the website for the Customer's employees or external service providers commissioned and named by the Customer, in particular so that the Customer can maintain the content of the Platform itself or have it maintained. LINKANDO is responsible for the technical requirements and framework conditions for accessing, displaying and editing the contents of the Platform by the Customer.
- LINKANDO shall procure the software licenses required for the provision of the operational services itself and at its own expense, unless the licenses are designated as provided by the Customer. Upon request, LINKANDO shall provide the Customer at any time with all information relevant under licensing law with which the Customer can prove the legally compliant use of the software to third parties.
- Changes to the systems used by the Contractor to provide the operating services shall require the prior written consent of the Customer if they
- restrict the customer's data protection review and control options,
- increase existing risks or create new risks,
- cause additional costs or effort for the customer or
- have a negative impact on the price or quality of operating services.
- LINKANDO provides the customer with documentation in the form of a wiki or other online formats. The documentation shall describe the functionalities of the Platform in such a way that a technically qualified user with the appropriate prior knowledge can use it to independently maintain the contents of the Platform. The documentation must be kept up to date by LINKANDO at all times during the term of this SaaS contract.
3. provision of services
- LINKANDO shall provide the services in accordance with the recognized state of the art and in compliance with the applicable statutory, official and other regulatory requirements, relevant technical regulations and general norms and safety standards.
- LINKANDO is responsible in particular for ensuring that the services are provided in accordance with the relevant data protection regulations, the provisions on IT and data security and the storage of data.
- LINKANDO is obliged to involve the Customer's contact person if and insofar as this is necessary in connection with the performance of the services.
- LINKANDO provides the contractual services on its own responsibility and with its own employees. LINKANDO's employees are not subject to any professional instructions from the Customer.
4. subcontractors
- The Customer hereby authorizes LINKANDO to have the contractually agreed services or parts thereof performed by subcontractors, provided that the following conditions are met:
- In the event of any subcontracting of obligations, it must be ensured that the third party so obligated also fulfills the obligations existing between the Customer and LINKANDO. LINKANDO undertakes to draft its contractual agreements with subcontractors only in accordance with the provisions of these Terms of Use. LINKANDO remains responsible for the fulfillment of the activities and tasks outsourced to the subcontractor to the same extent as if they were carried out by LINKANDO itself.
- LINKANDO will evaluate the security, privacy and confidentiality practices of a subcontractor prior to its selection to determine that it is capable of providing the level of protection of Customer Data required by this Agreement; and
- Consent to the commissioning of the subcontractors listed in Annex 4 (in particular the data center operators) shall be deemed to have been given upon conclusion of the contract.
- The use of subcontractors is at the discretion of LINKANDO, provided that the following regulations are observed:
- LINKANDO shall inform the Customer in advance (by e-mail ) of any planned additions or replacements within the list of Subcontractors, including the name, address and role of the new Subcontractor; and
- the customer may object to such changes in accordance with section 4.4.
- If the Customer has a legitimate reason to object to the engagement of the new subcontractor, it must notify LINKANDO of this objection within 14 days. Within a thirty-day period from the date of LINKANDO's notice to the Customer informing the Customer of the new subcontractor, the Customer may request that the parties meet in good faith to discuss a resolution of the objection.
- LINKANDO may replace a new subcontractor without prior notice if the reason for the replacement is beyond LINKANDO's reasonable control and the immediate replacement is necessary for safety or other urgent reasons. In this case, LINKANDO will inform the Customer of the new subcontractor immediately after its appointment. Clause 4.4 applies accordingly.
5. maintenance services
- LINKANDO will maintain the platform and all of its components from a single source. LINKANDO's main task is to maintain the operability, operational readiness and performance of the Platform and the hardware and software used for its operation. In order to ensure the fulfillment of this task, LINKANDO will maintain the hardware and software used by it through appropriate measures and repair it if necessary. For maintenance purposes, LINKANDO may temporarily interrupt or restrict the Platform for technical reasons. During times outside the operating and service times (maintenance times), the Platform may nevertheless be available, possibly with interruptions and restrictions, and its use may be technically possible; however, there is no entitlement to use. LINKANDO provides the maintenance services listed in this Clause 5 and described in more detail in the SLA(Annex 2). Unless otherwise stated below, these maintenance services are remunerated via the standard monthly usage fee.
- LINKANDO shall provide the Customer with updates and other new versions and releases of the standard software components underlying the Platform and the software used for the operation of the Platform in consultation with the Customer after their release and shall install them in the Platform. LINKANDO also provides the Customer with other adaptations and further developments of its standard software components (e.g. addition of new functions). Expenses for the customer-specific adaptation of such further developments shall be remunerated separately by the Customer.
- LINKANDO will advise the Customer within the scope of maintenance on all questions that arise for the Customer when using and operating the standard functions of the Platform and the standard software components on which the Platform is based. For this purpose, it shall set up a hotline that can be reached by telephone and e-mail during normal operating hours (see SLA).
- LINKANDO will analyze and rectify errors and other faults that occur during the operation of the website and/or become apparent in the associated documentation as part of incident management. The response and troubleshooting times specified in the SLA(Appendix 1) apply to this.
- Troubleshooting includes isolating the cause of the error, diagnosing the error and rectifying the error or, as a transition until the error is finally rectified, restoring the operational readiness of the platform by bypassing the error and its effects (workaround). In the event of a temporary workaround of the error by means of a workaround, the final elimination of the error must be carried out as part of the preventive maintenance service described below.
- The customer-specific maintenance services, in particular adaptations (customizing), settings (parameterizations), interfaces and additional programming must be fully releasable with regard to future updates of the standard software components used. In this respect, LINKANDO guarantees that the individual adaptations and additions created by it for the customer as well as additional programming will be executable on the platform used without further expenses.
- If legal or regulatory changes make it necessary to adapt and/or supplement the Platform or individual functions, LINKANDO will implement these in good time before they come into force. If these changes affect the customer-specific design or customer-specific components of the Platform, these changes will be commissioned by the Customer as part of a change order. If changed customer-specific compliance requirements necessitate a significant adjustment and/or addition to the Platform or individual modules or functions, these must also be commissioned and remunerated separately by the Customer.
- LINKANDO must document all changes and additions made by it to the Platform and inform the Customer of the scope and nature of the changes made. It shall keep the documentation provided to the Customer up to date at all times.
6. integration and maintenance of data and content
- The Customer provides LINKANDO with data for integration on the Platform on an ongoing basis or enters this data itself. This may be the Customer's own data or data from external data suppliers with whom the Customer has concluded corresponding contracts. The data and content provided to LINKANDO by the Customer are protected by copyright for the benefit of the Customer (or its data suppliers and licensors in the case of third-party data and third-party content). The Customer grants LINKANDO the non-exclusive right, limited to the term of this SaaS Contract, to display the data and content provided by it (its own and third-party data and content) exclusively via the Platform (including all subdomains) on the Internet and to reproduce and make it publicly accessible for this purpose, as well as to store the data and content for the purpose of data backup. In particular, LINKANDO is not entitled to pass on the Customer's data to third parties outside the Platform or to make it accessible to them.
- The contractor shall not receive any further rights to the data and content provided.
7. service levels
Error classes, response and troubleshooting times, recovery times after a disaster, data integration times and the availability owed are defined and described in the SLA(Annex 1).
8. cooperation of the customer
- The Customer shall support LINKANDO in the provision of the contractual services to a reasonable extent and in a timely manner. The Customer is obliged to provide LINKANDO with all information necessary for the respective execution of the order in accordance with the service description in a timely and complete manner.
- LINKANDO continuously monitors the proper provision of the cooperation services and, in the event of non-compliance with a cooperation deadline, immediately requests the Customer in writing or in text form to provide the outstanding services. If necessary, LINKANDO shall offer support with the provision of the agreed cooperation services for a fee.
- If LINKANDO is of the opinion that it is hindered in the provision of services because the Customer does not fulfill a duty to cooperate, does not fulfill it on time or does not fulfill it properly, LINKANDO shall inform the Customer of this in writing, stating the relevant circumstances, in order to minimize any delay or increase in expenses resulting from the possible breach of a duty to cooperate.
9 Confidentiality and data protection
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LINKANDO undertakes to treat confidentially and protect against unauthorized access any documents, information and data made available to it or of which it becomes aware as a result of or in connection with the services to be provided by it and which the customer has marked as "confidential" (hereinafter referred to as "confidential information") for the duration and after termination of the use of the Linkando platform. Confidential information includes in particular the following information provided or made accessible
- business or trade secrets of the customer or third parties and
- Information that is subject to data protection,
- Information that represents know-how relevant to competition, and
- other information, provided it is marked as confidential.
- The confidential information may only be used by LINKANDO within the scope of the fulfillment of the contract and the purpose of the contract. Furthermore, it may not be recorded, stored, reproduced, passed on or used or exploited in any form for its own purposes.
- Otherwise, LINKANDO may only disclose the Customer's confidential information if this is required by law or orders of state bodies or if the Customer has expressly consented to this in writing. LINKANDO will inform the Customer immediately - if legally permissible - as soon as it is requested by an authority to provide information about the Customer's confidential information or is subject to other sovereign measures.
- Information is excluded from the confidentiality agreement,
- which are or become generally known or publicly accessible
- which LINKANDO has lawfully received from third parties who are not subject to any confidentiality obligation in this respect;
- which LINKANDO has demonstrably developed independently of the customer.
- The parties undertake to comply with the applicable data protection law. The Parties agree that the Contractor's services constitute commissioned data processing in the form of the storage and processing of the Customer's data and - unless personal data is involved - such data must also be protected in the same legal, technical and organizational manner as personal data. Accordingly, the provisions of the Order Processing Annex(Annex 2) apply uniformly to the processing of all data on behalf of the customer.
10. rights of use
- The customer is entitled to use the software on which the platform is based (individual developments and standard software components of the contractor, hereinafter referred to as "software") for the intended use in accordance with the following provisions.
- LINKANDO grants the customer a simple, non-exclusive, time-limited, non-transferable right to use the software.
- In terms of content, the right of use includes in particular the right to use the software
- to reproduce it non-publicly and publicly on any media for any purpose and to make it non-publicly and publicly accessible in networks (in particular on the Internet or an intranet),
- in databases, networks and online services via interfaces, including the right to make the software available for use by users of the databases, networks and online services;
- for closed user groups (in particular also external service providers or suppliers of the customer), including the right to make the software available to the users of such user groups in whole or in part,
- not only for its own purposes within the framework of the platform, but also within the framework of other (online) services of the customer as well as for the provision of services to third parties and/or to grant third parties simple rights of use for their own use of the platform.
- All rights to the names, trademarks, logos and other marks of the Customer used in the creation of the Platform as well as to the design elements and other content provided by the Customer remain exclusively with the Customer (or its licensors) in relation to LINKANDO. LINKANDO receives from the Customer those simple rights of use to the trademarks, content and other protectable items provided by the Customer that it requires to operate the Platform in accordance with the contract. LINKANDO is not permitted any further use.
11. freedom from third-party rights
- LINKANDO warrants that the contractual services and their utilization by the Customer do not infringe the rights of third parties. Insofar as open source software is used, LINKANDO warrants that the contractual use of the Platform by the Customer does not violate the applicable open source license terms.
- The Customer shall inform LINKANDO immediately of any claims asserted by third parties and shall not recognize such claims without LINKANDO's consent.
- If the software provided by LINKANDO or customized software or the use and/or exploitation of the Platform (or other services or work results) infringes the rights of third parties, LINKANDO shall, at its own expense and at its discretion
- either provide the customer with the right to use the goods in accordance with the contract, or
- design the platform or other work results in such a way that they fall outside the scope of protection of the third party's rights and nevertheless comply with the contractual provisions, or
- replace the Platform or other work results with other, equivalent software or work results that do not infringe any property rights. 11.4 The provisions of this Section 11 shall only apply if the Platform has been used by the customer as agreed and the infringement of property rights was not caused by the customer itself.
12. liability
- Unless otherwise agreed between the parties in the individual contract, the following liability provisions shall apply.
- LINKANDO shall pay damages, irrespective of the legal grounds, as follows:
- in the event of intent, gross negligence and breach of a material contractual obligation in full;
- in all other cases, liability is limited to the damage that LINKANDO could typically expect to occur, but limited to a maximum of twice the amount of the annual usage fee per claim and year, unless LINKANDO can prove that the damage is lower.
- The objection of contributory negligence remains unaffected. The statutory liability for personal injury and under the Product Liability Act remains unaffected.
13. rights of termination
- LINKANDO has the right to terminate the user relationship extraordinarily for good cause. This applies in particular if a party breaches the confidentiality and data protection provisions set out in this Agreement or in Annex 2 or any other material contractual obligation and does not cease this breach within the period set for this purpose even after a corresponding request by the other party
14 Obligations at the end of the contract / data transfer
- The customer is obliged to use the export function available on the platform for its own content in good time before the end of the contract.
- LINKANDO is obliged to support the Customer in transferring the content of the Platform to a successor provider in the event of termination of use. "Subsequent provider" is the Customer itself or a third party commissioned by the Customer. This applies regardless of the reason for and by whom this SaaS contract is terminated. LINKANDO's services are remunerated on a time and material basis according to the current price list.
- The Customer may request LINKANDO to support it in transferring the content of the Platform to the successor provider by providing the Customer's content in CSV file format and uploaded documents in ZIP file format free of charge. The files must be retrieved by the Customer in self-service.
15. final provisions
German law shall apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
