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TERMS OF USE

These Terms of Use apply to the usage of software applications based on Software as a Service (SaaS) of the website www.easy-ssp.com orchideo | easySSP, provided by eXXcellent solutions GmbH (hereinafter: "Provider"), Beim Alten Fritz 2, 89075 Ulm, Germany, by the Customer (Customer and Provider hereinafter jointly "Parties" and individually "Party").

Definitions

  1. "User Account" means the access authorization to the respective access-restricted Service of Provider.
  2. "Customer Data" refers to all content of the Customer that the Customer submitted to the Provider in connection with the use of the Service and the User Account. Customer Data also includes access and registration data.
  3. "Service Description" means the description of the technical functional scope of the respective Service provided to the Customer by the Provider.
  4. "Service" describes the respective software applications that are provided by the Provider and can be booked by the Customer.
  5. "Service Level Agreement" (SLA) defines the quality characteristics of a Service in terms of availability and maintenance delivered by the Provider. The SLA is an essential part of these Terms of Use.

Scope and Subject Matter of the Terms of Use

The Provider provides the Services to the Customer solely on the basis of these Terms of Use.

The subject matter of these Terms of Use is the provision of the Service described in greater detail in the Service Description by way of a SaaS model for use by the Customer, the necessary storage space as well as the granting or procurement of usage rights regarding the Service by the Provider and, if applicable, in return for payment of the agreed remuneration.

Rights of Use and Scope of Use

The Provider is and remains the owner of all rights to the software. The Customer is granted a non-exclusive, non-transferable right to use the Service, limited to the term of the contract. The Service is provided to the Customer for use in accordance with its intended purpose.

Exceptions to this can be regulated in an individual contract that has to be concluded separately between the Parties. The scope of the intended use as well as the type, duration and scope of the rights of use result from these conditions and any individual contract concluded.

The Customer obligates himself to use the software solely in accordance with the contract and neither to pass it on to third parties nor to make it accessible to third parties in any other way.

The Customer is prohibited from developing the source programs from the software as well as analyzing accessible source code or passing it on.

If the Provider provides new versions, updates, upgrades, modifications or extensions of the Service or makes other changes with regard to the Service during the term, the provisions of Section 3 shall also apply to these, even if the modifications or extensions were ordered by the Customer and paid for separately.

The Customer is obliged to ensure compliance with the provisions of these Terms of Use.

If the Customer violates the provisions of Section 3, the Provider may, after prior written notification to the Customer, block the Customer's access to the Service if the violation can be remedied thereby. The block shall be lifted as soon as the reason for the block no longer exists. If the Customer continues to violate or repeatedly violates the provisions of Section 3 despite a written warning from the Provider, the Provider may terminate the contractual relationship without notice, unless the Customer is not responsible for the violation. The right of the Provider to claim damages remains unaffected.

Technical Availability of the Service and of Access to Customer Data

The Provider owes the availability of the Service and of Customer Data as agreed in the SLA. The transfer point for the contractual services is the router exit of the data centers used by the Provider to the Internet.

The Provider owes the availability of the functionalities of the Service described in the Service Description only if the Customer fulfills the system requirements also regulated therein.

The Customer shall be solely responsible for fulfilling the system requirements. The provisions of Section 6 shall apply accordingly to changes to the system requirements and to changes to the technical system of the Provider.

Faults in system availability must be reported by the Customer immediately after they become known. Before reporting the fault, the Customer must check his area of responsibility.

Support

The Provider shall provide a free online support to support the use of the Service. Support does not include: general know-how transfer, training, configuration and implementation or customer-specific documentation or customization of the software.

Support is provided exclusively via e-mail. The address for this is easy-ssp@exxcellent.de.

Support Services are provided by the Provider on business days Monday to Friday between the hours of 9:00 am - 5:00 pm. Excluded from this are public holidays in Baden-Württemberg and the 24th and 31st of December each year. Requests received outside of these support hours will be considered as received during the next business day.

Change in Performance

The Provider may change the Service (including its system requirements) to adapt to technical or economic market changes and for good cause. In particular, this is the case if the change is necessary due to

  1. a necessary adjustment to a new legal situation or jurisdiction,
  2. changed technical conditions (new browser versions or technical standards),
  3. the protection of system security, or
  4. the further development of the Service (e.g. also deactivation of old functions that have been largely replaced by new ones).

The Provider shall notify the Customer of any changes that are detrimental to the Customer in a timely manner, usually two weeks before they come into effect, by e-mail. The Customer's consent to such a change shall be deemed granted if the Customer does not object to the change in writing or by e-mail by the change date. When announcing the change, the Provider shall again separately point out this legal consequence.

User Fee and Payment Terms

The Customer shall owe the Provider the remuneration agreed upon in the Service Description for the use of the Service and the provision of the maintenance and Support Services during the term of the contract.

The charge for the fee-based Service consists of the periodic charge defined in the Service Description, which is billed in advance at the beginning of each period, and any additional charges depending on the use of specific functions.

All charges are in Euro and shall be exclusive of VAT or any other tax of a similar nature in whatever jurisdiction, which may be substituted or levied in addition to it. The Customer making a payment under this agreement shall pay, in addition to sums due, any VAT or other sales or similar tax due at the current rate. The remuneration shall become due on the date of the respective invoice and is payable within 30 calendar days to the bank account indicated in the invoice.

Duties and Obligations of Customer

The Customer shall perform all cooperation duties required from the Customer for the execution of the contractual relationship. In particular, the Customer is obliged to:

  1. In the event of registration, keep usage and access authorizations secret, to protect them from access by third parties and not to pass them on to unauthorized users. These data shall be protected by suitable, effective measures. The Customer shall inform the Provider immediately if there is any suspicion that the access data and/or passwords may have become known to unauthorized persons;
  2. to create the system requirements described in the Service Description;
  3. to comply with the restrictions/obligations with regard to the rights of use pursuant to Section 3 as well as to pursue violations of these obligations effectively and with the aim of preventing further violations;
  4. to obtain the necessary consent of the respective data subject, insofar as personal data is collected, processed or used when using the service and no legal or other permissible circumstances apply;
  5. to check data and information for viruses or other malware before sending them to the Provider and use state-of-the-art virus protection programs; and
  6. to notify the Provider of defects in contractual services immediately (no later than the following working day) after becoming aware of them by e-mail.

The Customer is not entitled:

  1. to gain access to non-public areas of the Service or its underlying technical systems;
  2. to utilize robots, spiders, scrapers or other similar data collection or extraction tools, to utilize programs, algorithms or methods to search, access, acquire, copy, or monitor the Service outside of the documented API endpoints;
  3. to transmit knowingly Customer Data containing viruses or worms, Trojan horses or other contaminated or harmful components, or otherwise interfere with the proper working of the Service;
  4. to decrypt, decompile, disassemble, reconstruct or to otherwise attempt to discover the source code, any software or proprietary algorithms used, except as permitted under mandatory applicable laws;
  5. to test, scan or investigate the vulnerability of the Service; or
  6. to intentionally use any device, software or routine to interfere with or disrupt the Service, functions or usability of the Service, or to intentionally destroy, create excessive load on, interfere with, or fraudulently intercept or take over any other data, systems or communications.

Intellectual Property

Except for Customer Data, all content of the Service, such as text, graphics, logos, button icons and images, is the property of the Provider or the Provider’s licensors, and is protected by copyright or by other intellectual property rights.

Confidentiality and Data Protection

The Parties agree to keep secret any knowledge gained within the scope of the subject matter of the contract - in particular technical or economic data as well as other knowledge - and to use it exclusively for the purposes of the subject matter of the contract. This shall not apply to information which is publicly accessible or becomes publicly accessible without unauthorized action or omission of the contracting parties or which must be made accessible due to a court order or a law.

In the case of support assistance with the Customer's problems, it may be necessary to access the Customer's records. The access can be done via a web meeting with the Customer or via database analysis. This access is limited to the period of the respective support measure.

Insofar as the Customer Data is personal data, the following shall apply: The Provider processes the Customer Data as a processor according to the meaning in art. 28 GDPR exclusively on behalf of and in accordance with the instructions of the Customer and exclusively for the purpose of providing the Service. The Provider shall take appropriate technical and organizational measures to protect the Customer Data. The Customer shall remain responsible for the lawfulness of the collection, processing and use of the Customer Data in accordance with the statutory provisions, in particular the BDSG and the GDPR.

Defect Claims

The Customer shall immediately notify the Provider of any defects in the Service and explain the circumstances of their occurrence. The Provider shall remedy the defect within a reasonable period of time. The Provider is entitled to circumvent the defect by means of a workaround solution if the cause of the defect itself can only be eliminated with disproportionate effort and the usability of the Service does not suffer significantly.

The strict liability for initial defects according to art. 536a para. 1 no. 1 BGB (German Civil Code) is excluded.

Liability

The Provider shall be liable for damages, insofar as these

  1. were caused intentionally or through gross negligence by the Provider, or
  2. were caused by the Provider due to slight negligence and are attributable to material breaches of duty which jeopardize the achievement of the purpose of this Agreement, or to the breach of duties the fulfillment of which is a prerequisite for the proper performance of this Agreement and on the observance of which the Customer may rely (e.g. Customer Data is completely lost and even old data cannot be reconstructed).

In all other respects, liability of the Provider is excluded, regardless of the legal grounds, unless the Provider is liable by law, in particular for injury to life, limb or health of a person, assumption of an express guarantee, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by the Provider shall only be made in writing and shall be designated as such.

Limitation of the amount: In the case of Section 12 (2), the Provider's liability shall be limited to the damage typically foreseeable for a contract of this type.

Term, Termination

The Customer may terminate his User Account at any time. Notwithstanding the foregoing, in the event that the Customer has entered into contracts for chargeable services, the User Account may only be terminated after termination of the current user contracts or simultaneous termination of the current user contracts. The User Account may be terminated by e-mail, stating the e-mail address used.

User Agreements for paid Services shall have a definite term of 12 months ("Basic Term") and shall be automatically renewed for the same period ("Renewal Term") upon expiration of such term, unless terminated by either party giving four weeks' notice ("Notice Period") to the end of the Basic Term or any Renewal Term.

Both Parties are entitled to terminate for good cause. For the Provider, this applies in particular in the event of failed direct debit or credit card collections. For the Customer, good cause shall be deemed to exist in particular if the Provider has made a disadvantageous change to the Service and the Customer cannot reasonably be expected to continue the contractual relationship, taking into account the interests of both Parties.

Obligations upon and after Termination of the Contract

The Provider shall delete the Customer Data from all systems of the Provider one month after termination of the Agreement, unless legal retention periods apply. The Customer is obligated to export and back up the Customer Data on its own responsibility in due time before termination of the contract or expiration of the aforementioned period.

Export Control

The Customer is aware that the use of the Service may be subject to import/export restrictions. In particular, there may be approval requirements, or use of the Service and related technologies may be subject to restrictions/limitations in foreign countries.

The Customer shall comply with applicable import/export control regulations of the Federal Republic of Germany and the European Union and with all other relevant regulations.

The Provider’s fulfillment of the contract is subject to such fulfillment not being opposed by impediments due to national or international import/export regulations or by any other statutory provisions.

Miscellaneous

This contract shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

The contract, its supplements and amendments as well as changes in form must be made in writing.

Should any provision of the contract be or become invalid, this shall not affect the validity of the remainder of the contract. The Parties undertake to replace the invalid provision with one that comes as close as possible to the economic intent. The same shall apply if a gap in the contract should become apparent.

If the Customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be the court responsible for the Provider's registered office. The Provider is also entitled to take legal action before a court that is responsible for the Customer's registered office or a branch office.

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