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Version of: 20 January 2020
Preliminary Remarks
Babtec Informationssysteme GmbH (hereafter referred to as “Babtec”) is a producer and provider of quality management software solutions. With the BabtecQube platform, Babtec provides cloud-based software for processing quality procedures. These quality procedures can also be jointly processed with business partners via BabtecQube, by exchanging quality data.
The prerequisite for this exchange of quality data via BabtecQube is that the Babtec customer, their customers and suppliers have agreed to exchange these quality data via BabtecQube. The agreement must particularly include that this method of asserting claims (e.g. a complaint) respects the regulations for making claims applicable to the relationship between the Babtec customer, its customers and suppliers concerning the assertion of claims (complaints, warranties, guarantees, and similar), whether they be statutory or contractual.
This agreement between the Babtec customer and their suppliers and customers is not the object of the Terms of Use and shall be mediated by the parties themselves. The Babtec customer and their suppliers and customers are hereafter also referred to as the "parties," or as "user(s)” (individually or jointly).
The offer of BabtecQube is exclusively oriented towards “entrepreneurs” (companies) defined as such under § 310 of the German Civil Code (BGB) in that the Terms of Use are also only applicable for entrepreneurs under § 310 of the German Civil Code.
§ 1 Description of Service and Use
(1) Object
The object of this agreement is the non-exclusive and non-transferable right to use the digital BabtecQube application (hereafter referred to as "application") operated by Babtec, whether installed on a computer of Babtec Informationssysteme GmbH (hereafter referred to as "Babtec"), or installed on a computer by a third party commissioned by Babtec. By using the application, the user declares his or her consent to the following provisions.
The service to be performed by Babtec includes providing the application and granting the rights of use necessary for this. Babtec shall make technical access to the application possible for the user.
Babtec shall operate the application and perform the data center services and other services necessary for this, or have them performed, according to this agreement. The application is currently located on a Microsoft Azure platform and is based on its infrastructure.
(2) The current valid version of the feature descriptions provided under www.babtecqube.com stipulates the properties, features and conditions for the application provided by Babtec and the services and functions of the application. Babtec reserves the right to change these properties, features and conditions at any time, specifically to expand or limit the application and its services and functions. Babtec has no obligations to provide any scope which goes beyond that mentioned in the current valid version of the feature description. In particular, the customer may not derive such an obligation from other descriptions of the application in public statements or in the advertising of Babtec, its employees, or its sales partners, unless Babtec has confirmed these further properties expressly in writing.
(3) Registration
In order to use the application, the user must be registered. This serves to authenticate the user and simultaneously guarantee the resulting potential security conditions on data protection. The details for registration result from the relevant registration process. The following data are namely requested upon first-time registration:
The user is obliged to enter the data required for registration themselves, particularly that of the companies involved. Babtec makes no guarantee that the user has used the data of the company in a complete and correct fashion. The respective user of the application is themselves responsible for verifying the data, including the data of their contractual partner.
Additions can be made to the other data in the application after registration. The master data of the user are required for identification of the user under the company account when continuing to use the application. These master data will be saved in the BabtecQube account.
(4) Infrastructure
Babtec does not operate the infrastructure necessary for running the application itself, instead it is operated via the Microsoft cloud computing platform Azure. However, Babtec is entitled to operate the infrastructure itself, replace the infrastructure used with another infrastructure, including those from another manufacturer, or have it replaced, at any time. Babtec is also entitled to have third parties run the application as part of outsourcing. Therefore Babtec currently does not service the infrastructure itself. Microsoft services the infrastructure at its own discretion insofar as this is necessary to maintain operation of the infrastructure. Babtec shall ensure that rights of use and, if applicable, maintenance agreements required for the infrastructure are present/are obtained.
(5) Data storage and backup
The user data generated with the application and the data transferred to the user through the message exchange of the application are stored as part of operation of the application. The data are stored for the duration of this agreement (§4 para. (5) of this agreement applies in the event of termination of this agreement). Data shall be backed up within the infrastructure according to the respective terms valid for the infrastructure and its use. The user is responsible for complying with contractual or statutory retention requirements and periods, especially under commercial or tax law, with respect to these data.
(6) Network connections
The connection between the users and the application is not the scope of service of this agreement; Babtec does not provide this and is not responsible for it. Each user must ensure the appropriate connection between the application and their network and establish it on their own. The user must bear the costs incurred for this themselves. The nature and form of this connection must meet the respective requirements of the application and be designed in such a way that the availability of the network connection corresponds to nature and extent of the use of the application by the user.
(7) Technical requirements
The user undertakes to establish the technical requirements for use of the application at their own expense. Babtec shall include the respective current technical requirements in the feature description.
Babtec notes that the technical requirements for use of the application may change. The respective user is obligated to inform themselves regularly about the status of the technical requirements and to establish the respective current modified technical requirements immediately at their own expense. If the respective current technical requirements are not met, use of the application may be limited or impossible.
(8) Maintaining the application
Babtec shall maintain the application or have it maintained at its own discretion. If the use of the application or a service for the application and/or of the application is not subject to fees, Babtec has no obligation to maintain the application. Apart from that the maintenance includes the ongoing improvement of the organizational process and program operation of the application.
Babtec may demand payment from a user in accordance with the usual payment for comparable services (plus the statutory value added tax) if Babtec has been called to action due to a fault report from the user without the actual existence of a defect (for which Babtec is responsible), or if Babtec has been called to action due to a fault report that is due to the user or its employees having insufficient knowledge of the application or technical knowledge.
(9) Hours of operation
As a general rule the application shall be available continuously and thus without time restriction insofar as it does not need to be deactivated for technical reasons, e.g., for data backup or maintenance of the application or infrastructure. Therefore continuous operation of the application cannot be guaranteed. The following also currently applies with respect to availability:
Microsoft guarantees availability of 99.9% per unit per year for the MS Azure platform. The phases in which the servers are not available should not last any longer than 30 minutes according to specifications from Microsoft. Running the application places demand on multiple units (database, processors, memory space, and similar), so the availability of the Azure platform on which the application runs is anticipated to be about 98% on an annual basis. Insofar as the servers are not available due to reasons that Babtec is not responsible for, this non-availability shall not be taken into account when calculating the 98% rate.
§ 2 Scope of the Rights of Use
(1) The user receives the non-transferable and non-exclusive right, limited in time to the duration of this agreement, to use the application provided by Babtec within the scope of use agreed here.
(2) Babtec pledges that the application covered by the present agreement is free of third-party rights.
(3) No cession of the application or other work results to the user occurs.
(4) The user is not entitled to use the application or other work results beyond the agreed use or make them accessible to third parties unless this access is made possible in order to allow third parties to process business transactions of the customer.
§ 3 Payment and Payment Terms
(1) The payment for using the services and functions of the application in the scope of services stated in § 1 and described in the feature description is calculated from the current valid version of the Price and Payment Terms as stated on www.babtecqube.com.
(2) Babtec is entitled to appropriately increase the agreed payment for use of the services and functions of the application in order to provide compensation for personnel increases and other cost increases. Babtec will inform the contractual partner of any such increases in price either in writing, via e-mail or by publishing new Pricing and Payment Terms that shall be indicated in the application. The increases in price shall not apply to the periods in which the contractual partner has already paid the payment which was previously agreed before the price increase was announced. If the increase per calendar year amounts to more than 3.5% of the relevant previous payment rate, the contractual partner is entitled to terminate this agreement by giving notice two weeks before the end of the calendar month. The right to terminate the agreement expires one month after the price increase has been announced and, at the latest, one month after the contractual partner has been made aware of the increase in price. If the contractual partner does apply the right to terminate the agreement, they shall be charged the payment price that was applicable up until the price increase until the termination becomes effective.
§ 4 The Term of the Agreement
(1) This agreement is of indefinite duration and begins upon registration; cf. § 1 (3) of this agreement.
(2) Discontinuation / termination and termination notice for free use.
The user may discontinue their usage of the application at any time if the usage of the relevant services and functions of the application is free of charge for the user under this agreement. The user is obligated to inform Babtec of this before discontinuing their usage and to inform all application users associated with themselves (customers and/or suppliers) of this in writing in a timely fashion before discontinuing their usage so that they can prepare for discontinuation of usage. If such notification is not given, usage is not considered to be discontinued, both vis-à-vis Babtec and vis-à-vis the users (customers and/or suppliers) of the application associated with the user unless the user has deleted the connection to the other user so that messages can no longer be exchanged. In this case, it remains the obligation of the user to inform all users (customers and/or suppliers) of the application associated with the user immediately in writing of the deletion of the connection in order to enable messages to be exchanged by other means.
Babtec is entitled to terminate this agreement at any time by issuing notice for this three months before the end of the intended calendar month, provided that the usage of the relevant services and functions is free of charge for the user and thus, where applicable, is limited to these services and functions.
(3) Minimum periods and termination notice periods for paid usage
If the usage of the relevant services and functions of the application is subject to charges for the user in accordance with this agreement, then the agreement may be terminated with a period of notice comprising three months before the end of the intended calendar month, provided that alternative conditions have not been agreed upon in the Pricing and Payment Terms. Periods of notice that deviate from this, which may be governed differently for the individual services and functions where applicable or may be limited to individual services and functions, or minimum terms, may be agreed upon in the Pricing and Payment Terms.
The user is obliged to inform all users of the application (customers and/or suppliers) that are connected with the primary user of the termination of this agreement as soon as possible and in good time before it ends, thus also informing them that the connection will be deleted/broken, so that the connected users can prepare for this and continue to exchange messages via other means.
(4) The termination of the agreement for cause for by both parties remains unaffected.
(5) The right of use expires upon termination of the agreement. Babtec shall provide the data of the user existing at the time of the termination to the user at the user's corresponding express request and in exchange for separate payment. If no such request by the user is forthcoming, Babtec is entitled to delete these data within 90 days of the discontinuance of the use of the application by the user or to have them deleted. The user is responsible for complying with contractual or statutory retention requirements and periods, specifically those required under commercial or tax law, with respect to these data itself.
§ 5 Data Ownership
Babtec is granted processing rights to the data of the users only in order to perform the contractual services. In all other respects the rights remain in the possession of the user.
§ 6 Cooperation and Obligations of the Customer
(1) The user shall immediately provide Babtec with all information accessible to themselves that are, to the best of their knowledge and belief, necessary in order for Babtec to perform the services.
(2) The user must support Babtec as far as is reasonable in remedying defects.
(3) The user shall provide the cooperation incumbent upon it at no cost.
§ 7 Liability
(1) Any liability of Babtec regardless of fault according to § 536 a para. 1 of the German Civil Code (Bürgerliches Gesetzbuch –BGB), a right of remedy, and a claim to compensation for expenses according to § 536 a para. 2 BGB are excluded. This does not apply if the defect is based on intent or gross negligence by Babtec, its legal representatives, or its vicarious agents; furthermore the liability exclusion does not apply in the event of fatal injury, bodily harm, or injury to health.
(2) Our liability for damages that result from damage to our contractual partner’s life and limb that in turn are based on a culpable breach of duty on our part, is neither excluded nor limited. We are only liable for other damages of our contractual partner if these are attributable to an intentional or grossly negligent breach of duty. If the damage was only caused by slight negligence on our part, we are only liable if this is an infringement of fundamental contractual duties, furthermore limited to reasonably foreseeable damage that typically occurs within the framework of such a contract. Furthermore, our contractual partner’s claims for damages due to faults, a breach of duty, hindrance of performance, illegal acts or other legal grounds are excluded. The aforementioned limitations of liability do not apply in the event that characteristics under the warranty are not present, if and insofar as the warranty served to protect the partner against damages that had not occurred due to the delivery/service itself. If any liability of ours has been excluded or restricted, then this also applies to the personal liability of our salaried employees, workers, contributors and vicarious agents. The aforementioned exclusions of liability always apply to consequential damages. However, they do not apply for claims under the German Product Liability Act (Produkthaftungsgesetz).
(3) By way of clarification, circumstances imposing on Babtec a warranty obligation or obligation to remedy defects do not obtain if downtimes or faults are attributable to circumstances outside Babtec's domain of influence and risk, especially downtimes or faults in the transmission network to be rented by the user separately or force majeure.
(4) Babtec has no warranty obligation or obligation to provide compensation for damages in the event of faults that the user has caused through negligent, grossly negligent, or deliberate actions, or through measures taken by it associated with the application. Therefore in this case as well Babtec does not owe successful remediation of defects but is rather only obligated to endeavor to remedy the defects.
(5) When a defect arises, the user must describe, immediately and in a comprehensible form, providing the information useful for identifying the defect, how the defect or defects make themselves known and what effect they have and provide the necessary documents.
(6) If in reviewing a defect reported by the user it becomes apparent that a defect reported by the customer does not exist, the customer must reimburse Babtec for all associated costs.
§ 8 Data Protection
Babtec notes that the personal data of the user is gathered, processed, and, in particular, stored and used in accordance with the current data protection regulations in force insofar as this is necessary in order to conclude and execute this agreement and for the transmission of the data between the users. We shall save the data required to execute the contract until the user has finally and irrevocably deleted their access, unless any other legal retention periods are imposed upon the data. Furthermore, we shall save the data that the user has voluntarily given for the period during which the application is used by the user, unless the user deletes it prematurely. The user may view and change all of the information that they have given in the personal area of their account at any time. Art. 6 para. 1 sentence 1(b) + (f) of the GDPR form the legal basis for this. Furthermore, we wish to state that our data protection statement can be viewed at www.babtecqube.com.
§ 9 Confidentiality
(1) The contracting parties shall maintain the secrecy of all information which is to be treated as confidential and of which they become aware within the scope of this contractual relationship and to use it vis-à-vis third parties – for whatever purpose – only with prior written agreement of the other party. The information to be treated as confidential includes only information expressly designated as confidential by the party providing the information and information whose confidentiality can clearly be inferred from the circumstances under which it was conveyed.
(2) The obligations according to para. 1 do not apply to information or portions thereof insofar as the receiving party demonstrates that
(3) Public declarations of the parties on any cooperation shall only be made with prior mutual agreement.
(4) The obligations according to para. (1) also persist beyond the termination of the agreement for an indefinite period of time, as long as no exceptional circumstances according to para. (2) are demonstrated.
§ 10 Final Provisions
(1) The place of fulfillment for all services to be performed by the parties on the basis of this agreement is the registered seat of Babtec in Germany unless something to the contrary is stipulated in this agreement.
(2) The sole place of jurisdiction for all disputes between the parties arising from the conclusion and execution of this agreement, including any actions on checks and bills of exchange, is the registered seat of Babtec in Germany. Babtec is also entitled to sue the user in any other jurisdiction applicable to the user.
(3) The relationship between the contracting parties is governed exclusively by the law valid in the Federal Republic of Germany with the exclusion of international law on sale of goods, especially the United Nations Convention on Contracts for the International Sale of Goods and other international conventions harmonizing the law on sale of goods.