Status 01/2019
Scope of application
These license conditions apply to contracts between the customer and OMNINET (hereinafter "Provider") for the temporary provision of the OMNITRACKS software as part of a Software as a Service (SaaS) solution.
By accessing or using the Services under this Agreement or allowing a User or End User to access or use the Services under this Agreement, the Customer agrees to be bound by these Terms.
If the Customer does not agree to these Terms, the Customer may not accept these Terms and may not access or use the Services under this Agreement.
Subject matter of the contract
The subject matter of the contract is the provision of the Provider's contractual software for use via the Internet and the granting of storage space on the Provider's servers. ("SaaS service").
The Provider is permitted to involve subcontractors in the provision of storage space. The use of subcontractors does not release the Provider from its sole obligation to the Customer to fulfill the contract in full.
The provider is not responsible for establishing and maintaining the data connection between the customer's IT system and the provider's servers.
Definition of the contract software
OMNITRACKS is a software for service organizations for the electronic recording and processing of service incidents ("tickets"), hereinafter referred to as "contract software". The customer can also administer and personalize the software himself via his web access.
The scope of functions of the contract software can be found in the product and service description on the website www.omnitracks.cloud.
Provision of the contract software
The Provider shall make the latest version of the contractual software available to the Customer via the Internet for the duration of this contract in return for payment. For this purpose, the Provider shall set up the software on a server that is accessible to the Customer via the Internet.
The Provider shall eliminate all software errors without delay in accordance with the technical possibilities. An error exists if the contractual software does not fulfill the functions specified in the service description, delivers incorrect results or does not work properly in any other way, so that the use of the contractual software is impossible or restricted.
The Provider is continuously developing the contract software and will improve it through ongoing updates and upgrades.
Rights of use to the contract software
The Provider grants the Customer the non-exclusive and non-transferable right to use the contractual software as intended for the duration of the contract as part of the SaaS service.
The customer may only reproduce the contractual software insofar as this is covered by the intended use of the software in accordance with the current service description. Necessary duplication includes loading the contractual software into the working memory on the provider's server, but not even temporary installation or storage of the contractual software on data carriers of the hardware used by the customer.
The user documentation can be found in the product and service description on the website www.omnitracks.cloud. The customer may only reproduce the user documentation for internal purposes.
The customer is not entitled to make the contractual software, including the user documentation and any other accompanying material, available to third parties for use, either for a fee or free of charge. This applies in particular to subletting.
Granting of storage space
The provider provides the customer with a defined storage space on a server to store their data, e.g. for ticket attachments. The customer can store content on this server up to a volume of 1 GB. If the storage space is no longer sufficient to store the data, the provider will inform the customer of this. The customer can reorder corresponding quotas subject to availability at the provider.
The Provider shall ensure that the stored data can be accessed via the web interface of the contract software as part of the services described.
The customer is not entitled to transfer this storage space to a third party for use in part or in full, for a fee or free of charge.
The Provider is obliged to take suitable precautions against data loss and to prevent unauthorized access to the Customer's data by third parties. To this end, the Provider shall perform daily backups, check the Customer's data for viruses and install state-of-the-art firewalls.
In any case, the customer is exclusively authorized with regard to the data and can export this data at any time via the functions contained in the administration area of the contract software.
In the event of termination of the contractual relationship, the customer is obliged to export the data stored in the contractual software himself using the administration functions provided for this purpose until the end of the term.
The Provider has neither a right of retention nor the statutory landlord's lien (Section 562 BGB) with regard to the customer's data.
Support
The Provider shall only provide software support if this is a contractual component of the ordered usage variant ("Subscription") in accordance with the service description on the website www.omnitracks.cloud.
The provider's support can then be contacted via the e-mail address or the reporting form on the website www.omnitracks.cloud.
The Provider shall provide its support services exclusively for the contractual software and only to the Customer's authorized support contacts deposited with the Provider for this purpose.
Support relates exclusively to errors in the software. An error is deemed to exist if the contractual software does not provide the agreed service as specified in the user documentation on the website www.omnitracks.cloud when used in accordance with the contract.
The Provider shall process the errors in the contractual software reported by the Customer and reproducible within the Provider's test environment within a reasonable period of time. In doing so, the Provider shall use its best endeavors to either inform the Customer how the error can be rectified and when this will take place or inform the Customer of measures to circumvent or temporarily bypass errors.
Interruption/impairment of accessibility
The Provider shall make the Software available to the Customer via Internet access for use in accordance with the contract. In doing so, the Provider strives for an overall availability of 99.50% within a corridor of +/- 0.50% on the technical infrastructure on which the software is based.
This availability is calculated as follows: (Total service time p. year - downtime) / Total service time p. year X 100. year X 100.
The service period is from Monday to Friday, from 08:00 to 18:00 CET, with the exception of public holidays at the provider location.
Regular maintenance activities to maintain and expand the software functionality and the associated technical infrastructure are excluded from the availability calculation. These activities are usually communicated to the customer on the website www.omnitracks.cloud or by e-mail notification. In addition, only outages with an individual duration of more than 2 minutes are taken into account in the availability calculation.
Obligations of the customer
The customer undertakes not to store any illegal content that violates the law, official requirements or the rights of third parties on the storage space provided.
The customer is responsible for the proper functioning of its own network infrastructure and the network and Internet connections required to access the contract software. This includes in particular the availability, continuity, security and performance of the customer's existing Internet connection for accessing the contract software.
The customer is obliged to take suitable precautions to prevent unauthorized access by third parties to the contractual software. To this end, the customer shall, where necessary, instruct its employees to comply with copyright law.
Notwithstanding the Provider's obligation to back up data, the Customer is responsible for entering and maintaining the data and information required to use the SaaS Service.
The customer is obliged 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 shall generate a "user ID" and a password for access to the SaaS service, which are required for further use of the SaaS service. The customer is obliged to keep this access data secret and not to make it accessible to third parties.
The content stored by the customer on the storage space may be protected by copyright and data protection laws. The customer hereby grants the provider the right to make the content stored on the server accessible to the customer via the Internet when the customer queries it and, in particular, to reproduce and transmit it for this purpose and to be able to reproduce it for the purpose of data backup.
Remuneration
The remuneration to be paid for the use of the software provided by the Provider is set out in the applicable price information at www.omnitracks.cloud.
Unless otherwise stated, the remuneration listed on the website www.omnitracks.cloud is a net remuneration and is subject to statutory VAT.
The provider can invoice monthly or after completion of the services.
The Provider may adjust the remuneration agreed with the Customer to changing market conditions. In the event of price increases that exceed the general consumer index applicable at the Provider's location at that time, the Customer shall be entitled to terminate the contract at the end of the next month after receipt of the price increase. If the customer exercises this right, he shall notify the Provider in writing within 2 weeks of receipt of the price increase.
The Provider shall issue the Customer with a proper invoice for the services to be provided, which shall be due for payment immediately upon receipt. If the Customer is in default of payment, the Provider shall be entitled to discontinue the services 5 days after a payment reminder has been issued. At the same time, the Provider shall have an immediate claim against the Customer for default interest in the amount of 9% above the applicable base interest rate.
The Provider agrees to the sending of electronic invoices. Invoices in paper form shall only be created and sent by the Provider at the express request of the customer against reimbursement of a processing fee of €8.00 per invoice.
Additional services
All services that are provided at the request of the customer but are not included in this contract and its annexes shall be deemed additional services.
Additional services must be paid for separately by the customer. The parties shall reach a separate agreement on this in each individual case.
Liability for defects/liability
The Provider guarantees the functionality and operational readiness of the SaaS service in accordance with the provisions of this contract.
In the event that the provider's services are used by unauthorized third parties using the customer's access data, the customer shall be liable for any charges incurred as a result within the scope of civil liability until receipt of the customer's order to change the access data or notification of the loss or theft, provided that the customer is at fault for the unauthorized third party's access.
The Provider is entitled to immediately block the storage space if there is reasonable suspicion that the stored data is unlawful and/or infringes the rights of third parties. Reasonable suspicion of illegality and/or infringement of rights exists in particular if courts, authorities and/or other third parties inform the Provider of this. The Provider must inform the customer of the block and the reason for it without delay. The block must be lifted as soon as the suspicion is invalidated.
Claims for damages against the Provider are excluded, irrespective of the legal grounds, unless the Provider, its legal representatives or vicarious agents have acted with intent or gross negligence.
The Provider shall only be liable for slight negligence if a material contractual obligation has been breached by the Provider, its legal representatives, executives or vicarious agents. The Provider shall only be liable for foreseeable damage that can typically be expected to occur.
Material contractual obligations are those obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfillment of which the customer may rely.
The Provider shall be liable without limitation for damages caused intentionally or negligently by the Provider, its legal representatives or vicarious agents arising from injury to life, limb or health.
The Provider shall only be liable for the loss of data to the extent that lost data can be restored with reasonable effort.
Term and termination
The minimum term of the SaaS service is 3 months, unless otherwise specified in the relevant usage variant ("Subscription").
The contract is automatically extended by the minimum term defined in this contract if it is not terminated in text form (e-mail, contact form www.omnitracks.cloud) by one of the contracting parties with one month's notice to the end of the contract term.
The right of each contracting party to terminate the contract without notice for good cause remains unaffected. The Provider shall be entitled to terminate the contract without notice in particular if the Customer fails to make due payments despite a reminder and a grace period or violates the contractual provisions on the use of the SaaS Service. In any case, termination without notice requires that the other party be warned in writing and requested to remedy the alleged reason for termination without notice within a reasonable period of time.
Data protection/Confidentiality
The Provider shall comply with the provisions of the General Data Protection Regulation and in this context shall provide an agreement on order processing for conclusion with the Customer. The Customer shall be responsible for the declarations of consent required by its customers and contractual partners in accordance with the provisions of the data protection laws.
The Provider undertakes to maintain the strictest confidentiality about all confidential processes of which it becomes aware in the course of the preparation, execution and fulfillment of this contract, in particular business or trade secrets of the Customer, and neither to pass them on nor to exploit them in any other way. This applies to any unauthorized third parties, i.e. also to unauthorized employees of both the Provider and the Customer, unless the disclosure of information is necessary for the proper fulfilment of the Provider's obligations under this contract. In cases of doubt, the Provider shall obtain the Customer's consent prior to such disclosure. The Provider also undertakes to agree with all employees and subcontractors used by it in connection with the preparation, execution and fulfillment of this contract a regulation with the same content as this paragraph.
Functional cookies are required for the contract software to work properly. Without these functional cookies, the contract software does not offer the full performance in accordance with the service description. By using the contract software, the customer agrees to the use and storage described here.
Applicable law, place of jurisdiction
This contract is subject to the law of the Provider's registered office. The provisions of the Vienna UN Convention on Contracts for the International Sale of Goods (CISG) are excluded.
The exclusive place of jurisdiction for all disputes arising from this contract is the Provider's registered office. The Provider may also sue the Customer at the latter's registered office.
Miscellaneous
Annexes referred to in this contract are an integral part of the contract.
The Provider is entitled to include the Customer's name and other publicly accessible information in a reference list, which is also published on the Internet. Other advertising references must be agreed with the customer in advance.
The transfer of rights and obligations from this contract by the customer to a third party requires the prior written consent of the provider.
The customer may only offset such claims against the provider that are undisputed or have been legally established.
The customer is not entitled to exercise a right of retention against the provider on the basis of another claim not arising from this contract, unless this claim is undisputed or has been legally established.
Amendments and supplements to this contract are only effective if they are set out in a supplementary agreement signed by both parties. This also applies to the amendment of this written form requirement.
The invalidity of one or more provisions of this contract shall not affect the validity of the remainder of the contract. The parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. Until such a provision is found, the invalid provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision. The same applies in the event of a loophole in the contract that requires regulation.