§ 1 Validity of the contractual conditions
(1) Novamag GmbH, Senefelder-Ring 14, 21465 Reinbek (hereinafter referred to as "Provider") provides the User (hereinafter referred to as "Customer") with software modules of its SaaS solution Novamag (the overall software hereinafter referred to as "the Software"; individual modules hereinafter referred to as "the Modules") selected by the Customer within the scope of the order for retrieval via the Internet in accordance with these contractual terms.
(2) The Provider expressly addresses its offer exclusively to merchants within the meaning of the German Commercial Code (HGB) and not to consumers. If customers are not merchants within the meaning of § 1 HGB, they will be treated according to § 2 HGB, or according to § 14 BGB. The provider expressly rejects contracts with consumers.
(3) For the provision of the modules by the Provider and for any pre-contractual obligations, (a) any individual contractual agreements between the parties, (b) these General Terms and Conditions of Contract ("GTC") and (c) the relevant statutory provisions shall apply in the following order, unless otherwise agreed. Other contractual terms and 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 again expressly refer to the applicability of these GTC after first expressly referring to these GTC when concluding similar contracts in the future, the Provider's GTC shall apply exclusively in the version available at https://novamag.de/agb at the time of the Customer's declaration on the respective conclusion of the contract, unless the Parties agree otherwise in writing.
§ 2 Conclusion of contract
Offers of the provider are subject to change and non-binding, unless the offer is designated as binding in writing. A legal binding comes about only through a contract signed by both parties or through a written order confirmation of the provider, furthermore through the fact that the provider begins with the contractual provision of services after the order. The provider may request written confirmations of verbal contract declarations of the customer.
§ 3 Subject matter of the contract (Software as a Service)
(1) The subject matter of this Agreement is the temporary provision of the modules of the Software selected by the Customer within the scope of the respective order on a server provided by the Provider or in a cloud (Software as a Service).
Furthermore, the Provider shall grant the Customer the rights necessary 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.
(2) The modules offer the Customer the opportunity to enter Customer data and content via a password-protected website, which is also stored and processed on the servers of the Provider or hosting provider and from there integrated into the Customer's website.
The product description in the contract / offer in the version at the time of the conclusion of the contract according to § 2 shall apply to the modules, from which the owed quality of the modules conclusively results. The functional features and system requirements for the use of the modules as well as access requirements to the modules, in particular a functioning Internet connection (which is not provided by the Provider) stated therein are known to the Customer. The customer has checked the compliance of this specification with 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) An access is created for the Customer by the Provider. The customer receives an automated mail from the system. With the help of this mail, the Customer independently creates his password and subsequently receives access to the Novamag backend. The provider creates all booked modules for the customer in advance, so that they are available at login.
(5) Installation and configuration services, individual adaptations of the modules to the requirements of the Customer, as well as training and services that go beyond the contractually owed service obligation of the Provider and the maintenance of the modules in contractual condition are not the subject of the contract on the use of the modules, but can 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 shall use a server or a cloud to store the backend of the Software. The Provider grants the Customer the right to access the selected modules and the backend via the Internet to the extent necessary for the intended use of the modules.
(2) Hetzner Online GmbH and Amazon Web Services (AWS) are used as hosting providers. The location of the servers is in Germany and/or Finland.
(3) The Provider is entitled to change the hosting provider, provided that this does not involve any unreasonable disadvantages for the Customer and, in particular, no higher costs than the contractually agreed remuneration.
(4) The Customer is aware that during a possible change of the hosting provider, non-availabilities of Novamag may occur in accordance with the product description. These are part of the agreed nature for a maximum duration of 1 week (of once per calendar year) and do not affect the contractual compliance of the provision of the booked services.
(5) The Provider shall inform the Customer in writing about the intended change of the hosting provider at least four weeks before the intended change date.
§ 5 Rights and obligations of the customer
(1) The Customer shall receive the non-exclusive, non-transferable and non-sublicensable right to use the booked modules of the Software, i.e. the right to load, display and run the booked services on the remote infrastructure provided by the Provider, limited in time to the term of the lease agreement. The right of use is limited to the processing of the Customer's own data for the Customer's own purposes, i.e. to the use for the creation and display of the Customer's content on the Customer's own web presence via the Software.
(2) The Customer may not reproduce the Software (with the exception of temporary reproductions, insofar as these are necessary for the intended SaaS use), edit, reverse engineer, decompile or disassemble the Software, unless this is permitted by law by way of exception (in particular in accordance with §§ 69d, 69e UrhG). The Customer shall have no claim to surrender of the source code.
(3) The Customer shall not be entitled to pass on the modules or parts thereof to a third party or to enable a third party to use or take note of the modules or to use the modules for a third party or to publicly reproduce or make them accessible (with the exception of the retrieval of the Customer Content displayed via the Software by users of the Customer Website).
(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, insofar as the use goes beyond the contractually owed performance and the scope of functions and services promised in the product description. In particular, the Provider shall not be liable for incorrect or deviating presentation of the results on third-party systems, unless compatibility with these third-party systems was 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 immediately become invalid after a prior written warning, a request contained therein to remedy the situation in violation of the contract, and fruitless expiration of a reasonable period of at least 5 working days set by the Provider for the Customer in this regard, and shall automatically revert to the Provider.
(6) The parties shall be free to agree in writing on expressly deviating provisions regarding the rights of use granted.
(7) The customer is exclusively responsible for all content that the customer keeps accessible or stores on the platform. The Provider shall not be obligated, but shall be entitled, to check the content of the Customer for possible violations of the law.
(8) The Customer undertakes to observe all applicable statutory provisions when using the Software. In particular, he undertakes not to perform any actions that infringe the rights of third parties (including their personal rights) when using the software.
(9) The Customer undertakes not to provide any content that violates legal prohibitions, morality (in particular derogatory, racist, xenophobic, right-wing extremist or otherwise reprehensible content) or the rights of third parties (in particular personal rights, trademark rights, rights to a name and copyrights).
(10) The Customer undertakes to comply with the imprint obligation (or the respective legal obligation in the country of use) and all other information and labeling obligations itself, insofar as the Customer integrates the content displayed via the Software into its own service (e.g. its own website).
(11) If the Customer violates the conditions stated in (8) and (9), the Provider shall have the right to remove the respective affected data upon becoming aware of it, unless the Customer removes this contractually or unlawful content itself within 24 hours after prior complaint by the Provider.
(12) If the provider is informed by authorities or legal bodies of violations of applicable laws or rights of third parties, the respective required data of the customer will be forwarded to competent authorities or legal bodies after prior notification, provided that the provider is legally obligated to do so.
§ 6 Payment
(1) The monthly or annual total remuneration shall be calculated by adding the individual remunerations for the modules selected by the Customer in accordance with the price list provided to the Customer with the offer in the version applicable at the time the contract is concluded in accordance with § 2 or, in the event the contract is extended to include additional standard modules or workstations, at the time the extension is ordered.
(2) The Provider shall invoice the Customer for each calendar month at the beginning of the month in advance or in accordance with a different provision in the relevant offer (e.g. in advance for one year or for the entire term of the contract). The customer shall select this independently prior to conclusion of the contract.
(3) The first billing shall take place immediately after provision of the respective modules, but not before the end of any agreed free trial period.
§ 7 Control rights of the customer
(1) The Provider shall constantly check whether the services rented by the Customer pursuant to the Module are not exceeded. In particular, the check concerns the used memory 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 check does not need to be announced, it is performed continuously by mechanisms provided in the Provider's system.
(3) The check is administered by an employee of the Provider, an external employee or employees of the Hosting Provider. A protocol will be made available to the Customer in case of exceeding the agreed services.
§ 8 Extensions
The customer can extend the contract at any time to include additional workstations and modules (e.g., by explicit separate agreement with the provider or - if the provider provides this - via an automated digital process). The customer will always be informed about the associated costs before booking an extension.
§ 9 Maintenance, updates, upgrades
(1) The Provider warrants 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. If the customer orders a separately remunerated premium support, this shall be governed by separately provided terms and conditions.
(2) The Customer is obligated to notify the Provider of defects in the Software immediately after their discovery. In the case of material defects, this shall be 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 obligated to adapt the modules during the term of the contract at its own expense according to the following specifications:
(a) Updates: in order to maintain the quality owed, the Provider shall be obliged to correct errors in the modules and security gaps within a reasonable period of time and to provide the Customer with the resulting new versions of the modules for use.
b) Troubleshooting: The Provider shall support the Customer by providing advice on error avoidance, error correction and error avoidance.
c) Information: The Provider shall inform the Customer in a timely manner about planned new program versions and about program enhancements.
(4) The warranty shall only be provided with regard to the latest versions of the modules made available by the Provider as well as the updates, adjustments and bug fixes 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 condition.
(6) Further development / upgrades: The Provider shall, if necessary, further develop the Software in terms of quality and modernity and/or adapt it to changed requirements. However, there shall be no claim to this over and above the maintenance to be provided. Upgrades to modules already existing and booked by the Customer may be used by the Customer without additional costs; if the Provider creates new modules, the Customer may book these at the remuneration rates specified in the then current respective price sheet in accordance with these contractual terms and conditions.
§ 10 Module protection
The customer is obliged to secure the modules used by him against access by unauthorized third parties by means of suitable technical and organizational measures.
§ 11 Duration of contract
(1) The contract shall commence upon receipt of the order confirmation by the Customer, but not before the Provider has made the modules available on servers of the Provider or external hosting provider.
(2) The contract may be terminated by the Customer with a notice period of three months to the end of the respective term, at the earliest to the end of the minimum term associated with the respective module. Unless otherwise stated in the respective service description, this shall be 12 months. The term shall be automatically extended by a further 12 months in each case, unless notice of termination is given at the end of the respective term.
(3) The right of the parties to terminate the agreement for cause in accordance with the statutory provisions shall remain unaffected.
§ 12 Liability
(1) The Provider and the Customer shall be liable without limitation
a) for intent or gross negligence,
b) for injury to life, limb or health,
c) according to the regulations of the product liability law as well as
d) to the extent of any warranty assumed.
(2) In the event of a slightly negligent breach of an obligation which is essential for the achievement of the purpose of the contract and on the observance of which the other party therefore regularly relies and may rely (so-called cardinal obligation), the liability of each party shall be limited in amount to the damage which is foreseeable and typical in view of the nature of the transaction in question. The provision under paragraph 1 shall remain unaffected.
(3) There shall be no further liability of the parties.
(4) The above limitation of liability shall also apply to the personal liability of the employees, representatives and bodies of the Provider and the Customer.
§ 13 Confidentiality / data protection
(1) The parties undertake to treat as confidential all items (e.g. software, documents, information) received from the other party before or during performance of the contract which are protected by law or contain business or trade secrets or are designated as confidential or are to be regarded as confidential in the overall circumstances, even after the end of the contract, unless they are in the public domain without breach of the duty of confidentiality. The parties shall store and secure these items in such a way that access by third parties is excluded.
(2) The Customer shall make all information in connection with the contractual relationship and in particular all copies of software or documentation accessible only to the employees and other third parties who require this for the contractual use of the modules by the Customer. The Customer shall obligate all persons who receive confidential information under this Agreement to maintain confidentiality accordingly.
(3) The Provider shall process the Customer's data required for business transactions in compliance with the provisions of data protection law. The provisions of the DSGVO shall be complied with when processing personal data. Insofar as the Provider processes data within the scope of the operation of the Software that originates from the Customer and is personal data, the Provider shall process such data for the Customer in accordance with instructions on the basis of the order processing agreement to be agreed separately between the parties.
(4) The Provider shall store any personal data of the Users of the created medium only temporarily for technical reasons until such data has been transmitted to the Customer.
§ 14 Use of the customer reference for marketing purposes
Novamag may name the project as a reference on the website novamag.de, in our newsletter as well as on our social media channels and include the customer's company logo, provided the customer gives his consent. Reference texts will be agreed with the customer in advance. The Customer may revoke this agreement in writing at any time.
§ 15 Other
(1) The Customer may transfer rights and obligations arising from or in connection with this Agreement to third parties only with the written consent of the Provider.
(2) Any set-off against claims of the Provider shall be measured in accordance with the statutory provisions.
(3) Insofar as this contract is agreed in writing, 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 Convention on Contracts for the International Sale of Goods. This shall also apply 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, there may be licensing requirements or the use of the modules or related technologies may be subject to restrictions abroad. 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 performance of the contract shall be subject to the proviso that no obstacles based on national and international regulations of export and import law as well as no other statutory provisions prevent performance.
(6) Place of performance is Reinbek in Schleswig-Holstein.
(7) The exclusive place of jurisdiction for all disputes arising from or in connection with this contract shall be Reinbek in Schleswig-Holstein.
(8) Should individual provisions of this contract be invalid, this shall not affect the validity of the remaining provisions in principle. In place of the invalid provision, the parties shall agree on a provision that most closely reflects the objective of the contract in legal and economic terms. The same shall apply to unintended loopholes in this contract.
(9) All annexes referred to in this contract shall form an integral part of the contract.