Terms and Conditions CyberWeb

1.1 These terms and conditions apply to the use of the provider’s software according to the current product description and the order form as Software as a Service („SaaS“) or cloud offering.

1.2 The software is operated by the provider as a SaaS or cloud solution. The customer is enabled to use the software stored and running on the servers of the provider or a service provider commissioned by the provider via an internet connection during the term of this contract for their own purposes and to store and process their data with its help.

1.3 These terms and conditions apply exclusively. The customer’s terms and conditions do not apply. Counter-confirmations by the customer referring to their own terms and conditions are expressly rejected.

The provider makes the software available to the customer in the agreed version at the router exit of the data center where the server with the software is located („handover point“). The software, the computing power required for its use, and the necessary storage and data processing space are provided by the provider. The provider is not responsible for establishing and maintaining the data connection between the customer’s IT systems and the described handover point.

3.1 The provider informs the customer that restrictions or impairments of the provided services may arise that are beyond the provider’s control. These include, in particular, actions by third parties who do not act on behalf of the provider, technical conditions of the internet that are beyond the provider’s control, as well as force majeure. The hardware and software used by the customer and their technical infrastructure can also affect the provider’s services. To the extent that such circumstances affect the availability or functionality of the services provided by the provider, this does not impact the contractual compliance of the services provided.

3.2 The customer is obliged to report any functional failures, disruptions, or impairments of the software to the provider immediately and as precisely as possible according to the agreements in the order form.

4.1 The provider adheres to the legal data protection regulations.

4.2 For the purposes of contract execution, the customer grants the provider the right to duplicate the data to be stored by the provider for the customer, as far as this is necessary for the provision of the services owed under this contract. The provider is also entitled to keep the data in a backup system or separate backup data center. To eliminate disruptions, the provider is further entitled to make changes to the structure of the data or the data format.

4.3 The provider regularly backs up the customer’s data on an external backup server managed by the provider. The customer can, as far as technically possible, extract these data at any time for backup purposes.

4.4 If and to the extent that the customer processes or has personal data processed on IT systems technically managed by the provider, a data processing agreement must be concluded.

5.1 A support case exists when the software does not fulfill the contractual functions according to the product description. The manner of reporting the error is determined by the order form, as is the scope of support services.

5.2 If the customer reports a support case, they must provide as detailed a description as possible of the respective malfunction to enable the most efficient error resolution.

5.3 The parties may enter into a separate agreement for the provision of support, maintenance, and care services.

6.1 The payment period and amount of the remuneration, as well as the method of payment, are based on the order form.

6.2 If the customer delays payment of a due remuneration by more than four weeks, the provider is entitled to block access to the software after a prior reminder with a deadline and expiry of the deadline. The Provider’s claim to remuneration shall remain unaffected by the blocking. Access to the software shall be reactivated immediately after payment of the arrears. The right to block access also exists as a milder means if the Provider has a right to extraordinary termination in accordance with Section.

6.3 After expiry of the initial term in accordance with the order form, the Provider may adjust the prices as well as the rates for an agreed remuneration in line with general price developments. If the fee increase is more than 15%, the customer may terminate the contractual relationship at the end of the current contract month.

6.4 The remuneration for other services is based on the provider’s current price sheet.

7.1 The customer will support the provider in the provision of contractual services to a reasonable extent.

7.2 The proper and regular backup of their data is the responsibility of the customer. This also applies to documents provided to the provider in the course of contract execution.

7.3 For the use of the software, the system requirements resulting from the product description or the order form must be met by the customer. The customer is responsible for this.

7.4 The customer must keep the access data provided to them confidential and ensure that any employees who are given access data do the same. The provider’s services must not be made available to third parties unless expressly agreed upon by the parties.

7.5 When creating graphics, data, and results with the provided software, it must be ensured that appropriate labeling is carried out, indicating that the creation was done using the software.

7.6 A violation of point 7.5 will result in a contractual penalty of €2,500.

The statutory provisions on warranty generally apply. Sections 536b (Tenant’s knowledge of the defect at the time of contract conclusion or acceptance) and 536c (Defects occurring during the rental period; tenant’s notification of defects) of the German Civil Code (BGB) apply. However, the application of Section 536a (2) (Tenant’s right to self-remedy) is excluded. The application of Section 536a (1) BGB (Landlord’s liability for damages) is also excluded, insofar as the provision stipulates liability regardless of fault.

9.1 The provider is liable for damages to the customer that were caused intentionally or through gross negligence, are the result of the absence of a guaranteed quality, are based on a culpable breach of essential contractual obligations (so-called cardinal obligations), are the result of a culpable injury to health, body, or life, or for which liability is provided under the Product Liability Act, in accordance with statutory provisions.

9.2 Cardinal obligations are those contractual obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner may regularly rely, and whose breach jeopardizes the achievement of the contract’s purpose.

9.3 In the event of a breach of a cardinal obligation, liability – insofar as the damage is based only on slight negligence – is limited to such damages that are typically to be expected when using the contractual software.

9.4 Otherwise, liability – regardless of the legal basis – is excluded.

9.5 If the customer’s damages result from the loss of data, the provider is not liable insofar as the damages would have been avoided by regular and complete backup of all relevant data by the customer.

10.1 The provider, as a technical service provider, stores content and data for the customer that the customer enters, stores, and makes available for retrieval when using the software. The customer undertakes not to upload any content or data that is criminal or otherwise absolutely or relatively illegal in relation to individual third parties, and not to use any programs containing viruses or other malware in connection with the software. The customer remains the responsible party with regard to personal data and must therefore always check whether the processing of such data through the use of the software is covered by the corresponding legal permissions.

10.2 The customer is solely responsible for all content used and data processed, as well as any necessary legal positions. The provider does not take notice of the customer’s content and generally does not check the content used by the customer with the software.

10.3 In this context, the customer undertakes to indemnify the provider from any liability and any costs, including possible and actual costs of legal proceedings, if the provider is claimed by third parties, including employees of the customer personally, as a result of alleged actions or omissions of the customer. The provider will inform the customer of the claim and, as far as legally possible, give them the opportunity to defend against the asserted claim. At the same time, the customer will immediately provide the provider with all available information about the facts that are the subject of the claim.

10.4 Further claims for damages by the provider remain unaffected.

11.1 The contract duration is determined by the offer sheet.

11.2 Extraordinary termination for good cause remains reserved for both parties if the legal requirements are met. A good cause for the provider exists in particular if the customer is in arrears with the payment of a due remuneration for more than two months despite a reminder. If the customer is responsible for the reason for termination, the customer is obliged to pay the provider the agreed remuneration minus any expenses saved by the provider until the date on which the contract would have ended at the earliest in the case of ordinary termination.

11.3 Termination declarations must be in text form to be effective. Compliance with this form is a prerequisite for the effectiveness of the termination. Fax and email do not meet the written form requirement.

11.4 After the termination of the contract, the provider must return all documents and data carriers provided by the customer and still in the provider’s possession that are related to this contract to the customer and delete the data stored by the provider, unless there are retention obligations or rights.

12.1 The parties are obliged to permanently keep confidential all information about the other party that becomes known or will become known in connection with this contract, which is marked as confidential or recognizable as business and trade secrets (hereinafter: „confidential information“) based on other circumstances, not to disclose it to third parties, record it, or otherwise exploit it, unless the other party has expressly and in writing consented to the disclosure or use or the information must be disclosed due to law, court decision, or administrative decision.

12.2 The information is not considered confidential information within the meaning of this clause 12 if it

• Was already known to the other party without the information being subject to a confidentiality obligation,
• Is generally known or becomes known without violating the confidentiality obligations undertaken,
• Is disclosed to the other party by a third party without violating a confidentiality obligation.

12.3 The obligations under this clause 12 survive the end of this agreement.

12.4 The provider reserves the right to analyze data anonymously for the purpose of improving the software.

The assignment of rights and obligations under this contract is only permitted with the prior written consent of the provider. The provider is entitled to entrust third parties with the fulfillment of the obligations under this contract.

14.1 This agreement and its amendments, as well as all contract-relevant declarations, notification, and documentation obligations, must be in written form unless another form is agreed upon or legally required.

14.2 The contract is governed by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods. The place of jurisdiction is the provider’s location, provided the customer is a merchant, a legal entity under public law, or a special fund under public law.

14.3 Should individual provisions of this agreement be invalid, the validity of the remaining provisions shall not be affected. In this case, the parties will cooperate to replace the invalid provisions with provisions that correspond as closely as possible to the invalid provisions.

14.4 By using the software, the customer agrees to the terms and conditions of this agreement.