Meisterplan Software as a Service Terms and Conditions

Terms of Service

to the agreement between itdesign GmbH, Friedrichstr. 12, 72072 Tübingen, Germany (hereinafter referred to as the “Supplier”) and you or the company/organization that you represent (hereinafter referred to as the “Customer”), hereinafter collectively referred to as the “Parties”.

Subject of the Agreement, Definitions

(1)

Under this Agreement, the Parties agree that the Supplier is to give the Customer the opportunity, subject to a fee, to use the software application “Meisterplan” (referred to hereinafter as the “Application“).

(2)

The subject of this Agreement is the provision by the Supplier to the Customer, subject to payment of the fee agreed in this Agreement, of the current version of the application made available by the Supplier for the use of its functionalities, the technical facility to use the application and the grant or transfer of rights of use to the application.

(3)
A functional description of the Application is available for download at

http://meisterplan.com/wp-content/uploads/Meisterplan-Product-Description.pdf.

The software environment approved by the Licensor for use of the Application, in particular the browser, is specified in the Application system requirements and is available for download at

https://meisterplan.com/wp-content/uploads/2016/12/meisterplan-system-requirements.pdf.

(4)

Unless explicitly agreed in this Agreement, the Supplier shall not be required to provide any further services. In particular, the Supplier shall not be obliged to provide further installation services and/or to create and deliver individual adaptations or supplementary programs.

(5)

Resource:          means, hereinafter, an individual person, who can be administered using the Application and who may also log in as a user of the Application.

Connector:        means, hereinafter, an Application module via which a connection to a defined third-party application may be set up and via which data may then be exchanged.

Environment:   An “Environment” is a logical unit on which the Application is operated. This may be a physical or virtual server; which can be accessed with the aid of a browser.

Provision of the Application, securing the Application Data

(1)

The Supplier shall keep the latest version of the Application on a central data processing system or several data processing systems (referred to hereinafter as “Server“, even if there are several of them), in accordance with the following provisions.

(2)

The Supplier shall transmit details of an administration account, including a password, to the Customer. The Customer shall immediately replace this administration password with a personal password known only to him.

(3)

The Application and the data generated by the Customer through use of the application (hereinafter the “Application Data”) shall be backed up regularly on the Server, at least once daily, unless agreed otherwise between the Parties. The security backup generated shall be filed on the Server. The backup thus filed shall be held for seven (7) days before being automatically overwritten on the following working day.

The backup may be provided to the Customer upon request.

The Customer shall be responsible for adhering to the archiving periods required under commercial and fiscal law.

(4)

The point of delivery of the Application and the Application Data shall be the router output of the data processing center used by the Supplier (referred to hereinafter as the “Delivery Point“).

Application trial versions

A free trial version of the Application shall be provided to the customer solely for trial purposes for a limited period. A trial version shall not be for use during normal business operations.

The data shall be deleted automatically at the end of the trial phase.

Technical availability of the Application, scheduled non-availability, reaction times, contractual penalty

(1)

The Parties understand availability as the technical usability of the Application and the Application Data at the Delivery Point for use by the Customer.

The Supplier shall be responsible for ensuring the availability of the Application and the Application Data at the Delivery Point, as agreed below.

(2)

a)
The Supplier shall make the application available to the Customer during the agreed system runtime, with the exception of the agreed scheduled outage periods pursuant to clause 4 (3) below.

The system runtime shall be 24 hours a day and 365 days a year.

b)

The parties agree to the periods of available use (which means availability exists) as follows:

The primary processing time within the system runtime and the secondary processing time (as a period outside the primary processing time but within the system runtime) are agreed as described below.

The availability is calculated separately within the primary processing time and within the secondary processing time. The availability value is the percentage of availability within the respective period of reference.

The period of reference for the measurement of availability is described as follows:

Primary processing time

  • Primary processing time: Monday to Friday from 9:00 – 17:00 CET/CEST

  • Monthly availability in % within the primary processing time: 98%
  • Longest uninterrupted outage period within the primary processing time: 4 hours

Secondary processing time:

  • Secondary processing time: all periods outside the primary processing time are considered secondary processing times; this also includes in particular Saturdays and Sundays, as well as public holidays in Baden-Württemberg and in the Federal Republic of Germany.
  • Monthly availability in % within the secondary processing time: 80%
  • Longest uninterrupted outage period within the secondary processing time: 24 hours

c)

Available use also includes periods of time during which

  • faults exist, the cause of which lies in the local IT system of the Customer or in a fault in the Customer’s connection to the agreed delivery point, or
  • other events occur, which are not caused by the Supplier or his vicarious agents, e.g., due to force majeure, abuse or operator error.

(3)

During scheduled outage periods, the Supplier is entitled to service and maintain the application and/or server and to perform data backups or other tasks. Scheduled outage periods are to be agreed with the Customer. If the work is important, the Customer shall not reasonably refuse to give consent without good reason.

The Customer hereby consents to the following scheduled outage period during the contractual period:

  • On the last Friday of each month from 16:00 to 22:00 CET/CEST

Even if the Customer is able to use the application during the scheduled outage period, it shall not be legally entitled to do so. If, during use of the Application during scheduled outage periods, there is a reduction in performance or suspension of performance, the Customer may not make a claim for liability for defects or for damages.

(4)

The actual availability as a percentage is calculated as follows:

For the primary processing time:

  • period of actual availability during the primary processing time in seconds, divided by

  • (length of the primary processing time during the month in question in seconds) less (planned non-availability during the primary processing time)

  • Multiplied by 100

For the secondary period of use:

  • period of actual availability during the secondary processing time in seconds, divided by

  • (length of the secondary processing time during the month in question in seconds), less (planned non-availability within the secondary processing time)

  • Multiplied by 100

The availability shall be determined by a monitoring instance of the Supplier. The availability of the application itself as well as that of the application services (such as reporting) shall be monitored.

Based on this monitoring procedure, data on availability shall be automatically generated, which the Supplier shall make available to the Customer.

(5)

The Supplier shall ensure, within the primary processing time only, that fault rectification work shall begin within a period agreed below, based on the respective fault class defined below, following receipt of a report of a technical fault from the Customer (by fax, telephone, or e-mail) or following automatic error reporting by the server or by the system installed at the Supplier’s premises (response time).

In the case of faults reported outside the primary processing time, the response time shall start on the next business day within the primary processing time.

Fault class Response time
Fault class 1 4 business hours
Fault class 2 2 business days
Fault class 3 5 business days

The fault classes are defined as follows:

Class 1: Defect that prevents operation

  • A defect that prevents operation shall exist if use of the application is impossible or severely restricted; a workaround is not available.

Class 2: Defect that hinders operation

  • A defect that hinders operation shall exist if use of the application is significantly restricted and no workaround is available.

Class 3: Minor defect

  • A minor defect shall exist if use of the application is possible without restriction or with minor restrictions.

(6)

If, during the primary processing time, the Supplier breaches the availabilities set out under clause 4 (2), the Customer shall be entitled to demand payment of a contractual penalty (referred to hereinafter as “Service Level Credit“) as follows:

  • if the availability during the primary processing time is not achieved: 0.5% of the monthly fee (pro rata) per failure, by 0.1% or part thereof, to achieve the agreed availability, albeit up to a maximum of 100% of the monthly fee;
  • if the longest uninterrupted downtime is overrun during the primary processing time: 5% of the monthly fee (pro rata) per overrun;
  • if the reaction time is overrun during the primary processing where there is a defect in fault class 1: 5% of the monthly fee (pro rata) per overrun.

This will not apply if the supplier is not responsible for the failure to achieve the availability/for the overrun of the downtime/reaction time.
The value of the total Service Level Credits forfeited shall not be paid out to the Customer or offset against the Supplier’s current invoices. Instead, the Customer shall be entitled to use the application for a period that is covered by the amount of the Service Level Credits received, without further payment. That period shall be added to the minimum term agreed under clause 14 or to the extension period in question.
The Service Level Credits shall be credited against any claims for damages by the Customer. Apart from claiming Service Level Credits, the Customer may require the Supplier to continue to fulfil the Agreement.

Other services of the Supplier, online user manual

(1)

The Supplier shall provide the Customer with new versions of the Application developed during the Agreement term (in particular updates, upgrades or releases). The new versions may also contain extended functionalities.

The Customer shall not have the right to require new versions to be produced or to demand the inclusion of specific additional functionalities in the Application.

(2)
The Supplier shall provide the Customer with an online user manual for the Application.

Rights of use, rights of the Supplier in the event that rights of use are exceeded

(1)

The Customer shall receive a simple, non-exclusive right of use to the Application, which may not be the subject of a subsidiary license and shall be non-transferable, shall be limited in time to the term of the Agreement and may be the subject of termination as set out in these General Terms of Business.

The Customer may only use the Application for its own commercial activities and using its own staff or agents.

(2)

The Customer may only use the Application by means of the number of resources and connectors stated in clause 1 (5) of this Agreement. The Customer may not log a resource into the system in such a way as to allow its concurrent use by more than one user.

(3) The Customer shall have access to one (1) environment. No additional environments will be provided for testing or quality assurance purposes. These may be booked as required, against a separate payment.

(4)

The Customer shall have no rights other than those explicitly granted to it above. In particular, the Customer shall not be entitled to use the Application beyond what is agreed or to allow its use by third parties, or to make the Application accessible to third parties.

(5)

The Customer shall take the necessary precautions to prevent use of the Application by unauthorized persons.

(6)

If the Customer infringes the obligations under clause 6 (1) to (5) of this Agreement, the Supplier may block the Customer’s access to the Application or the Application Data, if this demonstrably prevents continuation of the infringement.

If, despite a written warning by the Supplier, the Customer continues the infringements described under clause 6 (1) to (5), or is responsible for their continuation or repetition, the Supplier may terminate the Agreement for cause without notice.

Fee and payment

(1)

The Customer shall pay the Supplier the fee for use shown in this Agreement, plus value added tax at the statutory rate, for the services to be provided, namely granting use of the Application including backups.

(2)

The fee shall fall due for payment in advance, at the times set out in this Agreement.

(3)

The Supplier shall be entitled to apply a reasonable increase to the agreed prices for the contractual services in order to meet staffing costs and other cost increases. The Supplier shall notify the Customer of a price increase in writing or via email; the price increase shall not apply to the period for which the Customer has already made payments.

If the price increase amounts to more than 5% per annum of the former fee, the Customer may terminate this Agreement upon receipt of the notification on the date at which the price increase would take effect, subject to 30 days notice. If the Customer avails itself of its right of termination, then only the original fee shall be charged up to the point at which the termination takes effect.

The prices may not be increased within 12 months of the date of conclusion of this Agreement.

Customer’s duties of cooperation

(1)

The Customer shall fulfil all duties and obligations that are required in order to process this Agreement.

The customer undertakes in particular:

  • not to disclose the use and access authorities assigned to him or the users, to prevent them from being accessed by third parties and not to pass them to unauthorized users;
  • to protect the user IDs, passwords and the like through appropriate and customary means; the Customer shall notify the Supplier immediately in the event of any suspicion that the access data and/or passwords may have become known to unauthorized third parties;
  • to adhere to the restrictions/obligations in relation to the rights of use set out in clause 6 of this Agreement; and in particular:

    • not to retrieve or allow retrieval of any information or data without authorization, or to interfere with or allow interference with programs operated by the Supplier, or to infiltrate or promote infiltration into the Supplier’s data networks without authorization;
    • to indemnify the Supplier in the event of claims by third parties that result from the unlawful use of the Application by the Customer, or that arise out of disputes under data protection law, copyright law or other legal disputes brought about by the Customer, which are associated with the use of the Application;
    • to require authorized users to also adhere to the provisions of this Agreement and of these General Terms of Business that apply to them;
  • to check data and information for viruses before sending them to the Supplier and to install state-of-the-art antivirus software;
  • to immediately declare to the Supplier any defects in the contractual services, in particular defects in the services described in clause 2; if the Supplier has not been able to remedy such defects as a result of a failure to declare them or their late declaration, the Customer shall not be entitled to fully or partially reduce the fee owed under this Agreement, to demand compensation for the loss caused by the defect or to terminate the Agreement for cause without notice as a result of the defect. The Customer must demonstrate that it was not responsible for the failure to make the declaration.em;

Data security, data protection

(1)

The Parties shall observe the data protection provisions applicable to them, in particular those that are valid in Germany.

(2)

If the Customer gathers, processes or uses personal data, it shall be answerable for the fact that it is entitled to do so under the applicable legal provisions, in particular those under data protection law, and shall indemnify the Supplier for claims by third parties in the event of a breach of such provisions.

(3)

The Supplier shall only gather and use customer data to the extent necessary in order to perform this Agreement. The Customer hereby agrees to the gathering and use of such data to this extent.

(4)

The obligations set out in clause 9 (1) to (3) shall apply for as long as the Application Data remain within the Supplier’s sphere of influence, including beyond the end of this Agreement.

(5)

The Customer shall be responsible for the content that has been uploaded during use of the Application, and shall regularly prepare its own backups, in order to permit reconstruction of the content in the event of loss of the data and information.

(6)

If and insofar as the Supplier provides the Customer with the requisite technical facilities to do so, the latter shall regularly download backups for the Application Data stored on the Server; this shall not affect the Supplier’s obligation to make backups as described in clause 2 (3) of this Agreement.

Claims in the event of defective performance

(1)

If the services to be provided by the Supplier under this Agreement are defective, the Supplier shall remedy the defect, within a reasonable period and after receipt of a defect complaint by the Customer; it may also do so via the provision of a replacement or alternative solution, if and inasmuch as the Customer can reasonably be expected to accept such a solution.

(2)

If such subsequent performance fails, the Customer shall be entitled, after a reasonable additional period has been set and has expired, to reduce the agreed fee by a reasonable amount. The reduction shall be limited to the amount of the (monthly) fee that relates to the defective part of the service.

(3)

If use of the Application to the extent of the availability defined in clause 4 of this Agreement is not restored within a reasonable additional period to be set by the Customer after the Supplier has become aware of the defect, i.e. if use of the Application is impossible or is seriously restricted, so that a defect remedy fails, the Customer may terminate the Agreement for cause without notice.

The defect remedy may only be assumed to have failed if it is impossible, if the Supplier has refused it or has unreasonably delayed it, if there are well-founded doubts regarding its likely success or if the Customer cannot reasonably be expected to accept it for other reasons.

Liability, liability limits, product liability

(1)

The Supplier shall carry unrestricted liability for all losses:

  • involving loss of life, personal injury or impairment to health, which are the result of an intentional or negligent breach of obligation or of other intentional or negligent behavior on the part of the Supplier or one of its legal representatives or vicarious agents;
  • due to the absence or loss of a guaranteed feature or in the event of failure to adhere to a guarantee;
  • resulting from an intentional or grossly negligent breach of duty or on other intentional or grossly negligent behavior on the part of the Supplier or one of its legal representatives or vicarious agents.

(2)

The Supplier shall be liable for losses resulting from a minor negligent breach of material contractual obligations by the Supplier or one of its legal representatives or vicarious agents, in which case the compensation shall be limited to the typically occurring, predictable loss.

Material contractual obligations shall be those which are critical for proper execution of this Agreement and on whose adherence the Customer is entitled to rely.

(3)

The Supplier shall not be liable for losses caused through minor negligence, as a result of a breach of other non-material obligations by the Supplier or one of its legal representatives or vicarious agents.

The Supplier shall not carry strict liability for damages for any defects that existed at the time of conclusion of the Agreement. The above provisions shall also apply accordingly to the Supplier’s liability in relation to the reimbursement of wasted expenditure.

(4)

This shall not affect the Supplier’s liability under the Produkthaftungsgesetz German Product Liability Act.

Proprietary rights of third parties

(1)

The Supplier hereby guarantees that the Application is free from industrial property rights and copyrights of third parties.

If a third party asserts justified claims against the Customer owing to the infringement of proprietary rights by the Supplier’s Application, the Supplier shall be liable towards the Customer as follows:

  • The Supplier shall, at his own discretion and at his own expense, either obtain a right of use for the Application or the relevant part of the Application, or change the Application in such a way that the proprietary right is not infringed, or exchange the Application. If it is not possible for the Supplier to do so under reasonable conditions, then the Customer may avail itself of the statutory rights to withdraw from the Agreement or demand a reduction.
  • In the event of a legitimate claim being made against the Customer by a third party, the Supplier shall release the Customer from the costs that have arisen through the raising of these third-party claims (including reasonable lawyers’ fees, which shall be limited, where applicable, in accordance with the Rechtsanwaltsvergütungsgesetz German Legal Fees Act).
  • The Supplier’s obligation to pay damages is based on clause 11 of these General Terms of Business.

The Customer undertakes to notify the Supplier immediately, in writing or by e-mail, of the claims being asserted by third parties; the Supplier reserves the right to take all defensive measures and to conduct settlement negotiations. If the Customer discontinues use of the Application in order to reduce the damage for other important reasons, he shall be obliged to point out to the third party that the discontinuation of use does not constitute acknowledgement of an infringement of a proprietary right.

(2)

Claims against the Supplier in accordance with clause 12 (1) of these General Terms of Business shall be excluded if

  • the Customer is responsible for the infringement of the proprietary right,
  • the assertion of an infringement comes about through unauthorized modification of the Application by Customer or is associated with such a modification,
  • the Application is not used in accordance with the provisions of the Agreement and of these General Terms of Business or in accordance with the Application documentation.
  • the alleged infringement could have been prevented through the use of an update, upgrade or patch released by the Supplier,
  • the alleged infringement results from the use of the Application with a product from a third-party supplier that has not been made available by the Supplier.

(3)

Further claims of the Customer against the Supplier and its vicarious agents owing to claims resulting from the infringement of proprietary rights of third parties are excluded.

Contacts, escalation levels

(1)

The Parties shall each designate a primary contact, for the purposes of channeling communication, in particular in the event of problems relating to the terms of the Agreement; the primary contacts may make binding declarations for the party in question, or may arrange for such declarations to be made within five working days of receipt of written details of the circumstances and of the need for a decision from the other Party’s primary contact.

(2)

If agreement cannot be reached between the primary contacts within 10 working days of notification of the circumstances and of the need for a decision, the matter must be referred immediately, for a decision, to the management of each of the Parties or to representatives designated by them.

(3)

This Agreement may not be terminated for cause before this escalation process has run its course, if and insofar as such termination is based on a difference of opinion between the parties in relation to performance of the service.

Start of the Agreement, term, termination

(1)

The contractual relationship shall commence with the acceptance of the customer’s offer by order confirmation of the supplier.

(2)

Unless agreed otherwise, this Agreement shall have a minimum term of 12 months and may not be the subject of ordinary termination prior to that point. The contractual relationship shall be extended by further 12 months periods, unless one of the Parties has terminated it in writing at the end of the minimum term or the extension period in question, subject to 3 months’ notice.

(3)

This shall not affect the right of the Parties to terminate the Agreement for cause.

(4)

All notices of termination must be served in writing.

Duties during and after the end of the Agreement

When the contractual relationship ends, all the Customer’s rights to use the Application shall lapse. The Supplier shall delete the Customer’s Application database no later than four weeks after the end of the Agreement.

The Customer itself shall be responsible for securing all personal data by that point.

Force majeure, delays in performance of the service

The Supplier shall not be liable for delays in performance of the service due to force majeure, which shall include events that make it significantly more difficult or impossible for the Supplier to perform the services under this Agreement, including in particular strike, lockout, official orders, failure of, or problems associated with, communication networks and gateways of other operators, inasmuch as the Supplier was not responsible for such events.

Such events shall entitle the Supplier to postpone or interrupt the services for the duration of the hindrance.

Final provisions, place of jurisdiction, governing law

(1)

All agreements, ancillary agreements and assurances, and also subsequent amendments and supplements to this Agreement and/or these General Terms of Business, must be set out in writing. The same shall apply to the cancellation, amendment or waiver of this written form requirement.

(2)

If a provision of the Agreement and/or of these General Terms of Business should be or become ineffective or should be incomplete, this shall not affect the remainder of the Agreement; the remaining provisions shall remain effective.

In such a case, and in the case of loopholes that the Parties have not foreseen, the Parties shall agree on a provision that best fulfils the intent and purpose of the Agreement and the General Terms of Business and that reflects those of the invalid provision as closely as possible.

(3)

This Agreement and the General Terms of Business shall be governed by law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

(4)

The place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this Agreement and/or these General Terms of Business shall be Tübingen, Federal Republic of Germany.