Terms of Service
§ 1 Validity of the terms of contract
(1) Novamag GmbH (hereinafter referred to as "Supplier") shall provide the User (hereinafter referred to as "Customer") with software modules of its SaaS solution Novamag selected by the Customer in accordance with these contractual conditions for retrieval via the Internet.
(2) The provider's offer is expressly directed only at merchants within the meaning of the HGB and not at consumers. If customers are not merchants within the meaning of § 1 HGB, they shall be treated in accordance with § 2 HGB or § 14 BGB.
(3) For the provision of the modules by the provider and for pre-contractual obligations, the following order of precedence shall apply in business dealings (a) the contractual agreements, (b) these General Terms and Conditions of Contract and (c) the relevant statutory regulations, unless otherwise agreed. Other contractual conditions shall not become part of the contract, even if the Provider does not expressly object to them.
(4) Even if the Provider does not refer to this again when concluding similar contracts, the Provider's General Terms and Conditions of Contract shall apply exclusively in the version available at https://novamag.de/agb at the time of the submission of the Customer's declaration on the respective conclusion of contract, unless the parties agree otherwise in writing.
§ 2 Conclusion of contract
Offers made by the Provider are subject to change and non-binding, unless the offer is designated as binding in writing. A legal binding is only established through a contract signed by both parties or through a written order confirmation by the Provider, and also through the fact that the Provider begins to provide the contractual services after the order has been placed. The Provider can demand written confirmation of oral contractual declarations of the Customer.
§ 3 Subject matter of the contract (Software as a Service)
(1) The object of this contract is the temporary provision of the modules selected by the Customer on a server of the Provider. Hosting in a cloud can also be described as server.
Furthermore, the Provider grants the Customer the rights required for their contractual use for a limited period of time in accordance with § 5 and limited to the number of workstations selected by the Customer.
The Provider guarantees to provide all necessary rights and licenses upon conclusion of the agreement and for the duration of the cooperation. Furthermore, the Provider guarantees that the modules and their contractual use by the Customer do not violate any legal provisions or the rights of third parties.
(2) The modules offer the customer the possibility to enter the customer's data via a password-protected website, which are also stored and processed on the servers of the provider or hosting provider (Software as a Service).
The product description in the contract/offer shall apply to the modules in the version at the time of conclusion of the contract in accordance with § 2, from which the owed quality of the modules finally results. The Customer is aware of the functional features and system requirements specified there for the use of the modules as well as access requirements to the modules, in particular a functioning (and not provided by the Provider) Internet connection. The Customer has checked that this specification corresponds to his wishes and needs.
(3) The modules are selected by the customer. The prices of the modules are defined for each customer in a binding offer and handed over to him.
(4) The customer is provided with an access by the provider. The Customer will receive an automated e-mail from the system. With the help of this e-mail the Customer creates his own password and subsequently gains access to the Novamag Backend. The Supplier creates all booked modules in advance for the Customer, so that they are available when logging in.
(5) Installation and configuration services, individual adaptation of the modules to the customer's requirements, as well as training and services that go beyond the contractually owed performance obligation of the Provider and the maintenance of the modules in the condition as stipulated in the contract are not subject matter of the contract on the use of the modules, but may be agreed between the parties in a separate contract.
(6) The customer agrees that his invoice is transmitted electronically (e.g. in the portal itself or via e-mail). This is valid without signature.
§ 4 Hosting
(1) The provider uses a server or a cloud in executable form to store the back end. The Provider grants the Customer the right to access the selected modules and the backend via the Internet.
(2) The Supplier is liable for the reachability/availability of the server of the hosting provider on which Novamag runs and refers to the reachability/availability of the hosting provider.
(3) As hosting provider, services of Hetzner Online GmbH and Amazon Web Services (AWS) are used. The servers are located in Germany and Finland.
(4) The provider is entitled, after prior notification of the customer, to exercise the termination options under the hosting contract and to conclude a contract with another hosting provider. The Provider guarantees the Customer an alternative of at least equal value, which does not result in higher costs than the contractually agreed remuneration and cost absorption by the Customer.
(5) The Customer is aware that during the conversion of the hosting contracts according to the product description, unavailability of Novamag may occur. These belong to the agreed quality for a maximum duration of 1 week and do not affect the contractual conformity of the provision of the booked services.
(6) The provider shall inform the customer in writing of the intended change of hosting provider at least four weeks before the intended change.
(7) The billing of the services under the hosting contract shall be carried out by the provider and shall be borne by the provider; there shall be no further charging to the customer.
§ 5 Rights and duties of the customer
(1) The Customer receives the non-exclusive, non-transferable and non-sublicensable right to use the SaaS solution Novamag, i.e. the right to load, display and discontinue the booked services on the hardware of the provider, limited in time to the term of the rental agreement. The right of use is limited to the processing of the customer's own data for the operation of the customer for own purposes.
(2) The Customer may not duplicate, process, reverse engineer, decompile or disassemble Novamag, unless this is exceptionally permitted by law (in particular according to §§ 69d, 69e UrhG). The customer has no claim to the surrender of the source code.
(3) The customer is not entitled to pass on the modules or parts thereof to a third party or to allow a third party to use or take note of them or to use the modules for a third party or to reproduce them publicly or make them accessible.
(4) The customer is obliged to check the results output by the modules for plausibility and correctness. The Provider makes no assurances with regard to the accuracy of the results resulting from the use of the modules if the use exceeds the contractually owed performance and the scope of functions and performance promised in the product description. In particular, the customer is obliged to check whether the intended result corresponds to what was generated by the modules. In doing so, the Provider assumes no liability for incorrect or deviating presentation of the results, which may be incorrectly presented on third-party systems, unless compatibility with these third-party systems has been promised by the Provider.
(5) If the Customer culpably violates one of the above provisions (1) to (3), all rights of use granted within the scope of this contract shall become immediately ineffective and automatically revert to the Provider after a prior written warning, a request contained therein to remedy the state of affairs contrary to the contract and the fruitless expiry of a reasonable period of at least 5 working days set by the Provider for the Customer in this respect. A return of payments already made is excluded, unless the provider has culpably contributed to the violation of the customer.
(6) The regulations agreed in § 5 paragraph 1 and 2 can be excluded under conditions to be negotiated between the parties. For this purpose, individual contractual regulations must be drawn up. The possibility of exclusion does not imply the right to make use of it before an explicit, written regulation has been made. The Provider is free to allow a different regulation.
(7) The customer is responsible for all content that he keeps or saves on the platform. The provider is not obliged, but entitled, to check the customer's content for possible legal infringements.
(8) The customer undertakes to comply with all regulations valid in the respective country and those of the Federal Republic of Germany. This explicitly also applies to any additional statutory regulations that may apply. Furthermore, he undertakes not to take any actions when using the service that violate the rights of third parties (including their personal rights).
(9) The customer undertakes not to provide any content that violates legal prohibitions, morality (in particular degrading, racist, xenophobic, right-wing extremist or other reprehensible content) or the rights of third parties (in particular personal rights, trademarks, rights to names and copyrights).
(10) The Customer undertakes to comply with the imprint obligation (or the legal obligation in the country of use) on its own initiative.
(11) If the Customer violates the conditions mentioned in (8) and (9), the Provider has the right to remove the respective data concerned upon becoming aware of it, provided that the Customer does not remove this contract- or illegal content himself/herself within 24 hours after prior complaint by the Provider.
a) If the Provider is informed by authorities or organs of the administration of justice of violations of prevailing laws or rights of third parties for which the Customer is negligently responsible, the Customer's data required in each case will be forwarded to competent authorities or organs of the administration of justice after prior notification, insofar as the Provider is legally obliged to do so.
b) The provider will comply with the legal provisions according to the BDSG and will not forward any data of the customer, unless he is legally obliged to do so.
§ Section 6 Remuneration
(1) The monthly or annual remuneration results from the addition of the individual remuneration per rented module or contractual component with the number ordered by the customer per rented module according to the price list provided to the customer by way of an offer in the version at the time of the conclusion of the contract in accordance with § 2 or, in the case of the extension of the contract by further standard modules or workstations, at the time of the order of the extension.
(2) Billing shall be carried out by the Provider for each calendar month at the beginning of each month in advance or for one year or for the entire term of the contract. The Customer chooses this accordingly independently before billing. The amount corresponding to each module is due for immediate payment in accordance with the selected invoice.
(3) The first settlement of accounts shall be made immediately after the respective modules have been made available, but not before the end of a test phase.
(4) The interest on arrears shall amount to eight percentage points per annum above the base interest rate applicable at the time in accordance with § 247 BGB.
(5) The provider is entitled to adjust the remuneration in accordance with § 7.
§ 7 Adjustment of remuneration / special right of termination
(1) The supplier is entitled to adjust the prices for the modules with a lead time of 6 (in the main six) months. The currently valid new price list will be made available to the Customer in text form in good time.
(2) In the event of notification of an impending price adjustment, the customer shall be entitled to continue the contract under the conditions agreed in advance even after the price adjustment if a module has been rented with annual payment and the remaining term is at least 6 (in the main six) months. After termination of the remaining term, the customer has the option of using the module rental according to the new price list or to exercise his right of termination.
§ 8 Control rights of the provider
(1) The provider constantly checks that the services rented by the customer in accordance with the module are not exceeded. In particular, the check concerns the memory used for data on the servers of the hosting provider or the attributed volume of data flow, which was agreed upon according to the module.
(2) The verification shall not be announced, it shall be carried out continuously by mechanisms provided for in the provider's system.
(3) The check is administered by an employee of the provider, an external employee or an employee of the hosting provider. A protocol will be made available to the Customer if the agreed services are exceeded.
§ 9 Extensions, partial terminations
(1) The customer can extend the contract at any time to include additional workstations and modules. For this purpose, the remuneration rates and the billing procedure according to § 6 shall apply.
(2) If the customer exceeds one or more of his respective module volumes according to § 8, the provider will inform him immediately. The vendor will invoice the additional consumption for a maximum of 4 weeks in accordance with the variable price list, which will be made available when the offer is submitted. The Bidder shall invoice on the basis of the conditions valid at the time.
§ 10 Maintenance, Updates, Upgrades
(1) The provider guarantees the existence and maintenance of the contractually agreed quality of the modules during the term of the contract and that no rights of third parties conflict with the contractual use of the modules. The Provider shall remedy any material defects and defects of title in the modules within a reasonable period of time. The appropriateness shall be measured according to the corresponding
a) Relevance to defects, this means in particular the actual impairment of the overall performance,
b) the nature of the defect, which may be exogenous factors such as updates or changes to derivative software (e.g. Internet browsers, operating systems, extensions etc.) and
c) Causes, these may only be present at the Customer and cannot be replicated in other environments (as non-exclusive examples: proxy settings, routing in networks, browser versions or similar).
(2) The customer is obliged to notify the provider of defects in the software immediately after their discovery. In the case of material defects, this is done by describing the time of occurrence of the defects and the detailed circumstances.
(3) In order to maintain the quality owed, the Provider is in particular obliged to adapt the modules at his own expense during the term of the contract according to the following provisions:
a) Updates In order to maintain the quality owed, the Provider is obliged to eliminate module errors and security gaps as quickly as possible and to provide the Customer exclusively with the resulting new versions of the modules for use.
b) Fault assistance The Provider supports the Customer by providing information on error prevention, error correction and error avoidance.
c) Information The provider shall inform the customer about planned new programme statuses and programme extensions.
(3) "Module errors" are only understood to be such disturbances in the program flow which are suitable to impair the use of the modules in the customer's operation more than only insignificantly and are not based on technical problems of the customer (e.g. the inaccessibility of the external server due to errors in the Internet connection). If the Customer reports a corresponding error, the Provider shall rectify this error as quickly as possible.
(4) The Provider shall provide the services in such a way that they are based on the scope of services contractually agreed with the Customer and are oriented towards the interests of all users of the modules. Individual adjustments are not included and must be agreed separately. The services are only provided in relation to the last versions of the modules made available by the Provider and the updates, adjustments and error corrections to be carried out by the Provider.
(5) Any short-term unavailability of the modules in connection with the maintenance measures described in paragraphs (1) to (4) are known to the customer and are part of the agreed quality.
(6) Further development / upgrades
The Provider is also obliged to further develop the modules in terms of quality and modernity and to adapt the modules to changed requirements. The resulting new versions (upgrades) can be own modules and can be booked by the customer subsequently at the remuneration rates stated in the then current price sheet in accordance with these contractual conditions, insofar as the Provider does not incorporate the upgrades as updates in existing modules as in paragraph 3a.
§ 11 Protection of the modules
The customer is obliged to take suitable measures to protect the modules from access by unauthorised third parties.
§ Article 12 Duration of contract
(1) The contract shall commence upon receipt of the order confirmation by the Customer, but not before the Provider makes the modules available on servers of the Provider or external hosting providers.
(2) The contract can be terminated by the customer with a notice period of three months to the end of the term, at the earliest at the end of the minimum term belonging to the module. This shall be four full calendar quarters, unless otherwise stated in the respective service description.
(3) A termination for good cause must be threatened in writing beforehand with a period of notice of at least two weeks, stating the reason for termination.
(4) Any termination requires text form to be effective.
(5) At the end of the contract, the Customer shall return the software provided to the Provider or delete or destroy it and all copies and affirm in writing that this has been done.
§ Article 13 Liability
(1) The provider and the customer shall have unlimited liability
a) in case of intent or gross negligence,
b) for injury to life, limb or health,
c) according to the regulations of the product liability law and
d) to the extent of a guarantee given by the supplier.
(2) In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (cardinal obligation), the liability of the Provider and the Customer shall be limited in amount to the damage that is foreseeable and typical for the type of business in question.
(3) A further liability of the provider and customer does not exist.
(4) The above limitation of liability also applies to the personal liability of the employees, representatives and organs of the provider and the customer.
§ 14 Confidentiality / Data protection
(1) The parties undertake to treat as confidential all objects (e.g. software, documents, information) which they receive or become aware of from the respective other party before or during the execution of the contract and which are legally protected or contain business or trade secrets or are designated as confidential, also beyond the end of the contract, unless they are publicly known without breach of the obligation of secrecy. The parties shall store and secure these objects in such a way that access by third parties is excluded. The employees are to be obliged to maintain data secrecy in accordance with § 5 BDSG. Accordingly, employees are prohibited from processing or using personal data outside the lawful performance of their duties. This also applies to data that comes to the employee's attention as a result of his work for customers or suppliers. This obligation also remains in force in the event of a change of tasks or after termination of the employment relationship.
(2) The customer shall only make the contractual objects accessible to employees and other third parties who require access in order to perform their official duties. He shall instruct these persons about the need for confidentiality of the objects.
(3) The provider processes the customer's data required for the transaction in compliance with the data protection regulations.
(4) The provider stores the possible personal data of his consumers of the created medium only temporarily until these data have been transmitted to the customer; this is especially due to the technical structure.
§ Article 15 Miscellaneous
(1) The customer may only transfer rights and obligations from or in connection with this contract to third parties with the written consent of the Provider.
(2) A set-off against claims of the provider is measured according to the legal regulations.
(3) Amendments and additions to the contract must be made in writing. This also applies to the amendment or cancellation of this clause.
(4) This contract shall be governed exclusively by German law to the exclusion of the UN Sales Convention. This also applies to non-contractual claims in connection with this contract.
(5) The Parties are aware that the modules may be subject to export and import restrictions. In particular, licensing requirements may exist or the use of the modules or related technologies abroad may be subject to restrictions. The Customer shall comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America as well as all other relevant regulations. The Provider's fulfilment of the contract is subject to the proviso that there are no obstacles to fulfilment due to national and international regulations of export and import law or any other legal provisions.
(6) Place of performance is Reinbek in Schleswig-Holstein.
(7) Exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Reinbek in Schleswig-Holstein, provided that each party is a merchant or a legal entity under public law.
(8) Should individual provisions of this contract be invalid, this shall not affect the validity of the remaining provisions. The parties shall agree on a provision in place of the invalid provision that best legally and economically meets the contractual objective. The same applies to unintended gaps in this contract.
(9) All Annexes referred to in this Agreement form an integral part of the Agreement.