1. General Definitions
2. Conclusion of the Contract
(3) coneva will provide the Licensee with a binding written offer, including an order form (“Offer”) for products and services. A contract will only be deemed concluded if the Licensee accepts said Offer in writing by the indicated deadline (“Contract”).
3. Scope of Services
(6) In principle, the Licensee agrees that coneva may assign subcontracts to carefully selected third-party companies. coneva takes care that subcontractors will be bound by the same laws and regulations as coneva. This applies especially for confidentiality and the handling of data.
(7) The object is the software (“Software”) as described in and in accordance with the Offer in the respectively valid version, provided to the Licensee for use on a temporary and paying basis. The core functionalities of the Software are listed in the respective Offer. The actual Licensee-specific characteristics and the related services to be respectively provided by coneva are agreed upon in writing between coneva and the Licensee in accordance with point 2 (Conclusion of the Contract). coneva or the third parties which coneva has contracted are not obligated to carry out work that goes beyond the contractually owed service.
4. Rights of the Licensee to the Software
(8) coneva holds the copyright to the Software and its further developments.
(9) coneva grants the Licensee, for the duration of the Contract, a non-exclusive, non-transferable, and non-sublicensable right of use for the Software mentioned in the Contract and the corresponding user documentation, if not agreed upon otherwise in writing in the Contract. The Licensee does not acquire any property.
(10) If the right of use for the Software is to be granted to a wider group, this shall require a separate contractual regulation. This especially applies to use in affiliated companies of the Licensee, e.g., subsidiary companies, regional companies, or similar.
(11) The Licensee undertakes to use the Software only in accordance with the Contract and does not pass it on to third parties, or otherwise makes it accessible to third parties.
(12) The Licensee may store the Software on its hard drive and copy it as part of proper use as defined in the function description in the Contract.
(13) The Licensee does not have the right to decompile or modify the Software, if this is not required to create interoperability as defined in Section 69 e of the German Act on Copyright and Related Rights (UrhG).
(14) The Licensee does not have the right to correct potential errors in the Software itself or to have them corrected by third parties. This does not apply if coneva refuses such an error correction (see the conditions under point 10 and point 9.4).
(15) All property rights to the brand, name, and patent regarding the Software and the related documentation remain the property of coneva. Furthermore, the registration of a brand in connection with the Software provided by coneva or other services offered by coneva is not authorized under any circumstances. The Licensee may not remove, change, or
otherwise modify the copyright information or other similar indications of property in the programs and the related documentation.
5. Prices and Payment
(16) The pricing model for the described services consists of a one-time setup fee and/or a recurring service fee. The exact prices of both components can be found in the respectively applicable price list.
(17) Pricing is carried out as a monthly or annual service fee, respectively payable in advance with no deductions. The frequency of payment results from the Contract.
6. Handling of Data
(18) coneva uses the data for no other purpose than the development and provision of the Software and is specifically not entitled to communicate said data to third parties. Copies and duplicates, except for backup copies, shall not be created without the Licensee’s knowledge and prior written consent.
(19) The use or processing of personal data will take place only in accordance with the data processing agreement, as agreed upon between the parties.
Rights of the Licensee
(20) The data provided by the Licensee that is recorded, processed, and generated by the Software is stored on the servers of the data centers used by coneva within the EU. In any case, the Licensee or Licensee’s customer remains the sole owner of the data and can therefore demand from coneva at any time, especially after the termination of the Contract, the transmission of some or all data, with no right of retention for coneva.
(21) Transmission or handover of data takes place via electronic dispatch through a data network or, upon separate agreement, through the handover of data carriers.
(22) A separate fee is charged for the extraction of the data from the IT systems provided by coneva, the conversion of this data into a format desired by the Licensee, and for the transmission of the data and shall be regulated in the Contract.
(23) coneva is not obliged to retain the data stored by the Licensee after the end of the contractual period of use and after the release of the data to the Licensee. If the Licensee does not inform coneva within 14 days after handover that the data provided to him is not readable or incomplete, coneva is entitled to permanently delete the transferred data on its servers with the result that the Licensee is then no longer entitled to any claims for restitution against coneva.
Obligations of the Licensee
(24) The Licensee is responsible for the reliability of the recording, processing, and use of the data, as well as for the preservation of data subject rights (access, utilization, correction, blocking, deletion).
Data Processing and Data Protection
(25) If coneva processes personal data as a contract data processor, the parties shall conclude a separate data processing agreement. coneva complies with applicable law and takes all necessary measures for data protection (cf. terms of technical and organizational measures (“TOMS”)). Access Authorizations
(26) The Licensee shall receive access authorization consisting of a username and a password as defined in the Contract. The Licensee may only communicate the username and the password to their authorized user; they must otherwise be kept secret and inaccessible to third parties. If unauthorized third parties use the services of coneva using the access data of the Licensee, the latter is liable for the expenses incurred by this as part of civil liability, provided the Licensee is at fault for the access of the unauthorized third party. In this case, coneva is not liable for any impairment of data integrity by unauthorized third parties who have come into possession of the password; the Licensee is solely responsible for the immediate modification of the password.
7. Further Developments / Service Change
(27) coneva reserves the right, as part of technical progress and service optimization after Contract conclusion, to further developments and service changes (e.g., using newer or other technologies, systems, processes, or standards). For significant service changes, coneva shall notify the Licensee in a timely manner. If these service changes lead to a significant disadvantage for the Licensee, by considering all reasonable circumstances, Licensee has the right to terminate the Contract without notice and with immediate effect as of the change date.
(28) In particular, the Licensee may request additional functionalities and program expansions to the Software which would require an amendment to the Contract.
8. Software Operation and Availability
(29) coneva examines whether the Software provided can be operated in an environment and a form suitable for the requirements of the Licensee, as well as on hardware suitable for the usage purpose of the Licensee. This includes the number and type of servers, regular backups, scalability, electricity supply, air conditioning, firewalling, virus checking, and broadband internet connection. coneva makes daily backups of the available data. Through a restoration procedure, coneva can ensure the restoration of the Licensee’s data at the express request of the Licensee.
(30) The availability of the data center network at the router exit to the internet has an annual mean of 99%. The Licensee’s internet connection is the responsibility of the Licensee and not part of the scope of service. The downtime is determined in full minutes and is calculated by adding the fault clearance times of the year. This does not include the periods that coneva has designated as maintenance times for optimization and service improvement, nor time lost due to the resolution of disruptions that were not caused by coneva and failures due to force majeure.
(31) Maintenance times shall be agreed for periodic, planned, or unplanned maintenance work on the systems that are the object of the Contract by coneva and/or suppliers that is necessary for the preservation and security of ongoing operations or the execution of updates or upgrades. Any impairment to availability due to this necessary work is not considered a service disruption.
(32) Usually, system maintenance by coneva takes place between Friday 5:00 p.m. and Sunday 6:00 p.m. or at night on any weekday between 11:00 p.m and 08:00 a.m. the next day. In exceptional cases, system maintenance may be carried out at any other time, taking into consideration the lowest possible impairment to ongoing operations. System Disruption and Restoration
(33) Disruptions to system availability must be immediately reported by the Licensee once they become aware of it. Prior to reporting the disruption, the Licensee must check their area of responsibility. For disruption reports received within support times, elimination begins within two hours. For disruption reports received outside of support times, elimination begins the following business day.
(34) The support times are Monday through Friday, from 8:00 a.m. – 5:00 p.m. CET, except for public holidays in Bavaria, Germany.
(35) The regular response time to disruption reports during regular business hours is eight hours. The regular time until the elimination of a disruption is 24 hours. Delays in disruption elimination that are due to the Licensee (e.g., unavailability of a contact person on the Licensee side) are not added to the clearance time.
(36) The following channels are available for the reporting of errors or disruptions:
- Service portal: https://coneva.atlassian.net/servicedesk/customer/portal/
- Email: email@example.com
- Phone: +49 (0) 89 628196-0
9. Statutory Warranty
(37) According to the state of the art, it is not possible to exclude errors in the Software under all conditions.
(38) The Licensee must examine or perform a function test on the Software immediately upon delivery (possibility of access), provided this is possible as part of regular business operations. If the examination or the functional test show a defect, coneva must be notified immediately. The Licensee must handle the Software with the ordinary due diligence of a business person. The Software is considered approved if a complaint is not received by coneva within 14 days following the granting of use. Hidden defects that cannot be discovered within this period can only asserted against coneva if the notice of defects is communicated within one year following the granting of use. If there is no notification, any claim for defects for the Software is excluded.
(39) If coneva was not originally obligated to install or activate the defective product or services, defect elimination shall include neither the uninstallation/deactivation nor the reinstallation/reactivation.
(40) Errors in the Software and the related documentation shall be corrected free of charge by coneva by a reasonable deadline. The reproducibility of the error is the prerequisite for this entitlement to error correction. At its own discretion, coneva can either rectify or provide a replacement to fulfill its statutory warranty obligation. In particular, coneva can provide the Licensee with a new version of the Software in order to fulfill its statutory warranty obligation. Error correction remains the same if coneva provides an alternative to the faulty function enabling contractual use for the Licensee.
(41) coneva assumes no responsibility whatsoever for the availability, accuracy, correctness, completeness, or quality of data provided by third parties. (The figures are not guaranteed properties.)
(42) The warranty claims are excluded if the Software is not used in accordance with the Contract.
(43) If a material program error is not corrected by coneva in accordance with the aforementioned conditions, the Licensee may demand a reduction of the recurring costs or withdraw from the Contract. coneva has the same right if manufacturing the error correction is not possible with reasonable effort. If, during error correction, it is revealed that the problems are due to operating errors or improper use from the Licensee, coneva may demand appropriate compensation for any expense incurred.
(44) coneva does not guarantee the fulfillment of the individual requirements of the Licensee by the Software mentioned in the Contract. This especially applies to the non-achievement of the desired economic success. Warranty claims toward coneva may only asserted by the direct Licensee and cannot be assigned.
(45) If the Licensee is responsible for the disruption or defect that is the object of the complaint, or if there isn’t an actual disruption or defect, or at least not the area of responsibility of coneva, and the Licensee could have detected this with reasonable troubleshooting (aka an unjustified disruption report), the Licensee is obligated to reimburse, to a reasonable extent, coneva for the costs incurred by the review or error correction. The Licensee is free to prove lower costs. Reasonable troubleshooting includes the comparison with the online knowledge database and the known errors contained therein, as well as their correction or circumvention.
(46) coneva is only liable in case of intent and gross negligence, regardless of the legal reason. coneva is also liable for simple negligence in the case of damages arising from the breach of an essential contractual obligation, whereby the liability of coneva shall be limited to compensation for the foreseeable, typically occurring damage. These limitations of liability do not apply:
a) in cases of injury to life and limb
b) in the event and to the extent that coneva has fraudulently concealed a defect
c) in the event and to the extent that coneva has assumed a warranty for the quality of the service, or
d) for claims of the Licensee in accordance with the German Product Liability Act
(47) Paragraph (46) also applies in favor of the legal representatives and vicarious agents of coneva if claims are asserted directly against them. (48) In the event of data loss, coneva is only liable for the expense required for the restoration of the data when the Licensee has properly backed up their data. In case of simple negligence on coneva’s part, this liability only applies if the Licensee has properly backed up their data immediately before the measure that led to data loss.
(49) Liability for damages resulting from inappropriate usage is excluded.
11. Term and Termination
(50) The usage period of the Software is subject to the term as defined in the Contract. The usage period starts the setup has been completed and the Software is ready for operation. The usage period is automatically extended by another 12 months if the Contract is not terminated by one of the parties at least three (3) months prior to the end of the term.
(51) Both parties may terminate in writing the entire contractual relationship or individual service modules listed in the Contract. Termination via e-mail also meets the written form requirement. The receipt of the termination indicating the Licensee’s name, address, postal code, place of residence or establishment, and the desired date of termination shall be decisive. The termination via e-mail to coneva shall be sent to the following address: firstname.lastname@example.org. This shall not affect the right of both parties to termination without notice.
(52) Both coneva and the Licensee have the right to terminate the contractual relationship for cause without notice and with immediate effect.
Termination for cause of the Contract especially exists for coneva if the Licensee has defaulted on payment for more than 30 business days during the initial usage period or recovery of the claims toward the Licensee is not possible, and coneva has unsuccessfully given the Licensee a period of 8 business days to remedy the situation. coneva reserves the right, in case of reasons for termination of the Contract without notice and with immediate effect caused culpably by the Licensee to claim compensation for the damages incurred by coneva due to the fact the contractual relationship has been terminated early and cannot be properly maintained until the next possible termination date.
12. Final Provisions