Bitkom's contractual terms for use of software via the Internet (software as a service)

1.  Subject matter of the contract

1.1  The provider supplies the contractual services, in particular, access to software, in their area of disposition (from the data processing centre's interface to the Internet). The scope, nature, purpose and conditions of use of the contractual services are determined by the respective service description, in addition to the software's operating manual.

1.2  Further services such as development of customer-specific solutions or necessary adaptations require a separate contract.

1.3  The provider supply updated versions of software.

The provider shall inform customers about updated versions and corresponding instructions on use electronically, and make these accordingly available.

2.5  The provider may withdraw the customer's right of access and/or cancel the contract if the customer substantially exceeds their authorized scope of use or breaches regulations for preventing unauthorized use. In this context, the provider can interrupt or block access to the contractual services. Beforehand, the provider must always set a reasonable grace period of remedy for the customer. Sole revocation of access authorization does not simultaneously constitute cancellation of the contract. Revocation of access authorization without notice can be upheld by the provider only for a reasonable period of time not exceeding 3 months.

2.6  The provider's entitlement to remuneration for use above and beyond the agreed scope remains unaffected.

2.7  The customer is entitled to renewed granting of access authorization and access options after proving that they have ceased non-contractual use and prevented further non-contractual use.

3.  Availability, defective services

3.1  Availability of provided services is determined by the service description.

3.2  Just a minor reduction in a service's suitability for contractual use shall not give rise to claims by the customer regarding defects. Strict liability of the provider regarding defects already existent at the time of contract conclusion is ruled out.

3.3  Section 578b German Civil Code remains unaffected.

4.3  The following applies to the relationship between the provider and customer: The customer is responsible for processing (including collection and use) of personal data vis-à-vis the data subject, unless the provider is answerable to any claims by the data subject as regards breaches of duty attributable to them. The customer shall review, process and answer any enquiries, requests and claims by the data subject. This also applies to claims raised by the data subject against the provider. The provider shall support the customer as part of their duties.

4.4  The provider guarantees that the customer's data are saved exclusively in the territory of the Federal Republic of Germany, or a member state of the European Union, or another state party to the agreement on the European Economic Area, unless agreed otherwise.

5.  Customer's obligations

5.1  The customer shall protect the access rights as well as identification and authentication details assigned to said customer and users against access by third parties, and not relay these details to unauthorized parties.

5.2  The customer is obliged to exempt the provider from all claims of third parties due to legal breaches which are either based on the customer's unlawful use of the subject matter of the contract, or which occur with their consent. If the customer recognizes or must recognize that such a breach is imminent, they are obliged to immediately inform the provider.

5.3  The customer shall utilize the opportunities made available by the provider for securing their data in their original sphere of responsibility.

6.  Non-contractual use, damage compensation

For each case involving unauthorized use of a contractual service in the customer's area of responsibility, the customer shall pay damage compensation equal to the remuneration which would have been due for contractually compliant use over the minimum contractual period applicable to this service. Proof that the customer is not responsible for unauthorized use, or that damage is either absent or much less significant, remains reserved for the customer. The provider remains entitled to assert further damage claims.

7.2  The provider shall receive the customer’s reports of malfunctions during said provider's normal business hours and assign an ID to each report. On request by the customer, the provider shall confirm receipt of a malfunction report with a notification of the ID assigned to it.

To circumvent or remedy a fault in contractual services, especially the supplied software, the provider shall promptly supply the customer with available measures such as procedural instructions or corrections to the supplied software. The customer shall promptly implement such measures to circumvent or remedy malfunctions, and promptly notify the provider again of any remaining malfunctions when deploying the measures.

8.  Contact point (hotline)

8.1  Contractual services

The provider shall set up a contact point (hotline) for the customer. This point of contact processes the customer’s inquiries in connection with technical requirements and conditions for use of the supplied software, as well as individual functional aspects.

8.2  Receipt and processing of inquiries

As a prerequisite for receipt and processing of inquiries, the customer is to announce an appointment of expert and technically qualified staff to the provider, and assign these staff to internally process inquiries from users of the maintained software. The customer is obliged to submit inquiries to the hotline only via these staff members appointed for communicating with the provider, using the forms supplied by the provider for this purpose. The hotline receives such inquiries via e-mail, fax, and telephone during the provider’s normal business hours.

The hotline shall process proper inquiries as part of normal business routine and answer them as far as possible. In its responses, the hotline can refer the customer to available documentation and other training material for the supplied software. If the hotline is not able to answer an inquiry at all or in a timely fashion, the provider - if this is expressly agreed - shall forward the inquiry for processing, especially in the case of inquiries regarding software not developed by said provider.

Other hotline services such as further contact hours and periods as well as on-call service or the provider's deployment on-site at the customer’s premises must be expressly agreed in advance.

9.3  Each contractual partner's right to extraordinary termination for important reasons remains unaffected.

9.4  Every declaration of termination must be in writing to be effective. Item 8.4 of 'AV Bitkom' applies here.

9.5  Before termination of the contract, the customer will back up their data inventory (e.g. via download) under their own responsibility and in a timely manner. On request, the provider will support the customer in this process, Item 4.4 of 'AV Bitkom' being applicable here. Already for reasons pertaining to data protection legislation, the customer will no longer be able to regularly access such data after termination of the contract.

10.  Validity of 'AV Bitkom'

Bitkom's general contractual terms (document titled 'AV Bitkom') apply additionally.