SUBJECT MATTER OF THE CONTRACT
1.1 These contractual terms and conditions apply to the use of the software of the provider Credular UG (haftungsbeschränkt) (commercial register number 45288) in accordance with the current product description and the order form as Software as a Service (“SaaS”) or cloud offer.

1.2 The software is operated by the Provider as a SaaS or cloud solution. The customer shall be enabled to use the software stored and running on the servers of the provider or a service provider commissioned by the provider via an Internet connection for its own purposes during the term of this contract and to store and process its data with its help.

1.3 These contractual terms and conditions apply exclusively. The customer’s contractual terms and conditions shall not apply. Counter-confirmations by the customer with reference to its own terms and conditions are expressly rejected.

2. NATURE AND SCOPE OF THE SERVICE

2.1 The Provider shall make the software available to the Customer for use in the latest and most secure version at the router exit of the data center in which the server with the software is located (“transfer point”). The software, the computing power required for use and the required storage and data processing space shall be provided by the Provider. The Provider is not responsible for establishing and maintaining the data connection between the Customer’s IT systems and the described transfer point.

3. AVAILABILITY OF THE SOFTWARE

3.1 The Provider draws the Customer’s attention to the fact that restrictions or impairments to the services provided may arise that are beyond the Provider’s control. This includes, in particular, actions by third parties not acting on behalf of the Provider, technical conditions of the Internet beyond the Provider’s control and force majeure. The hardware, software and technical infrastructure used by the customer may also have an influence on the provider’s services. Insofar as such circumstances have an influence on the availability or functionality of the service provided by the Provider, this shall have no effect on the contractual conformity of the services provided.

3.2 The customer is obliged to notify the provider immediately and as precisely as possible of any functional failures, malfunctions or impairments of the software in accordance with the agreements in the order form.

4. RIGHTS TO DATA PROCESSING, DATA BACKUP

4.1 The Provider shall comply with the statutory data protection regulations.

4.2 The customer grants the provider the right to reproduce the data to be stored by the provider for the customer for the purposes of executing the contract, insofar as this is necessary for the provision of the services owed under this contract. The Provider is also entitled to store the data in a failure system or separate failure data center. The Provider shall also be entitled to make changes to the structure of the data or the data format in order to rectify faults.

4.3 The Provider shall regularly back up the Customer’s data on the server for which the Provider is responsible to an external backup server. Where technically possible, the customer may extract this data at any time for backup purposes and shall be obliged to do so at regular, customary intervals.

5 SUPPORT

5.1 A support case exists if the software does not fulfill the contractual functions in accordance with the product description. The type and nature of the error message shall be determined by the order form, as shall the scope of the support services.

5.2 If the customer reports a support case, he must provide as detailed a description as possible of the respective malfunction in order to enable the most efficient troubleshooting possible.

5.3 The parties may enter into a separate agreement on the provision of support, maintenance and care services.

6. REMUNERATION

6.1 The payment period and amount of the remuneration as well as the method of payment shall be based on the order form.

6.2 If the customer delays payment of a due remuneration by more than four weeks, the provider shall be entitled to block access to the software after prior reminder with setting of a deadline and expiry of the deadline.

6.3 The Provider’s claim to remuneration shall remain unaffected by the blocking. Access to the software shall be reactivated immediately after payment of the arrears. The right to block access also exists as a milder means if the Provider has a right to extraordinary termination in accordance with Section 11.2.

6.4 After expiry of the initial term in accordance with the order form, the Provider may adjust the prices as well as the rates for an agreed remuneration in line with the general price trend. If the fee increase is more than 5%, the customer may terminate the contractual relationship at the end of the current contractual month.

6.5 The remuneration for other services is based on the provider’s current price list.

7. OBLIGATIONS OF THE CUSTOMER TO COOPERATE

7.1 The customer shall support the provider to a reasonable extent in the provision of the contractual services.

7.2 The Customer shall be responsible for the proper and regular backup of its data. This shall also apply to documents provided to the Provider in the course of contract processing.

7.3 For the use of the software, the system requirements resulting from the product description or the order sheet must be fulfilled by the customer. The customer is responsible for this.

7.4 The customer must keep the access data provided to him secret and ensure that any employees who are provided with access data also do the same. The Provider’s service may not be made available to third parties unless this has been expressly agreed by the parties.

8. WARRANTY

8.1 In principle, the statutory warranty provisions shall apply. Sections 536b (knowledge of the Tenant of the defect upon conclusion of the contract or acceptance), 536c (defects occurring during the rental period; notification of defects by the Tenant) BGB shall apply. However, the application of Section 536a (2) (tenant’s right to rectify defects himself) is excluded. The application of Section 536a (1) BGB (landlord’s liability for damages) is also excluded insofar as the standard provides for strict liability.

9. LIABILITY AND COMPENSATION FOR DAMAGES

9.1 The Provider shall be liable in accordance with the statutory provisions for damages to the Customer caused intentionally or by gross negligence, which are the result of the non-existence of a guaranteed quality, which are based on a culpable breach of essential contractual obligations (so-called cardinal obligations), which are the result of culpable injury to health, body or life, or for which liability is provided for under the Product Liability Act.

9.2 Cardinal obligations are those contractual obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner may regularly rely, and whose breach on the other hand jeopardizes the achievement of the purpose of the contract.

9.3 In the event of a breach of a cardinal obligation, liability – insofar as the damage is merely due to slight negligence – shall be limited to such damage as must typically be expected to occur when using the contractual software.

9.4 Otherwise, liability – regardless of the legal grounds – is excluded.

9.5 If damage to the customer results from the loss of data, the provider shall not be liable for this if the damage could have been avoided if the customer had regularly and completely backed up all relevant data. The customer shall carry out or arrange for a third party to carry out a regular and complete data backup and shall be solely responsible for this.

10. CUSTOMER DATA AND INDEMNIFICATION FROM THIRD-PARTY CLAIMS

10.1 As a technical service provider, the Provider stores content and data for the Customer, which the Customer enters and stores when using the software and makes available for retrieval. The Customer undertakes vis-à-vis the Provider not to upload any content and data that is criminal or otherwise illegal in absolute terms or in relation to individual third parties and not to use any programs containing viruses or other malware in connection with the Software. The customer remains the responsible party with regard to personal data and must therefore always check whether the processing of such data via the use of the software is covered by the relevant permissions.

10.2 The Customer shall be solely responsible for all content and processed data used by it as well as any legal positions required for this. The Provider takes no notice of the Customer’s content and does not check the content used by the Customer with the software.

10.3 In this context, the Customer undertakes to indemnify the Provider against any liability and any costs, including possible and actual costs of legal proceedings, if claims are asserted against the Provider by third parties, including employees of the Customer personally, as a result of alleged acts or omissions by the Customer. The Provider shall inform the Customer of the claim and, insofar as this is legally possible, give the Customer the opportunity to defend against the asserted claim. At the same time, the customer shall immediately provide the provider with all available information about the facts that are the subject of the claim.

10.4 Any further claims for damages on the part of the Provider shall remain unaffected.

11. CONTRACT TERM AND TERMINATION OF THE CONTRACT

11.1 The contract term is based on the offer sheet.

11.2 Both parties reserve the right to extraordinary termination for good cause if the legal requirements are met. Good cause for the Provider shall be deemed to exist in particular if the Customer is more than two months in arrears with the payment of a due remuneration despite a reminder. If the customer is responsible for the reason for termination, the customer shall be obliged to pay the provider the agreed remuneration less any expenses saved by the provider up to the earliest date on which the contract would end in the event of ordinary termination.

11.3 Notices of termination must be in text form to be effective. Compliance with this form is a prerequisite for the effectiveness of the termination.

11.4 After termination of the contract, the Provider shall return to the Customer all documents and data carriers provided by the Customer and still in the possession of the Provider in connection with this contract and delete the data stored by the Provider, unless there are any retention obligations or rights.

12. CONFIDENTIALITY

12.1 The parties are obliged to keep permanently confidential, not to disclose to third parties, record or otherwise exploit all information about the other party that has become known or becomes known to them in connection with this contract, which is marked as confidential or is otherwise recognizable as business and trade secrets (hereinafter: “confidential information”), unless the other party has expressly consented to the disclosure or use in writing or the information must be disclosed by law, court order or administrative decision.

12.2 The information is not confidential information within the meaning of this clause 12 if it was already known to the other party beforehand without the information being subject to a confidentiality obligation, is generally known or becomes known without breach of the confidentiality obligations assumed, is disclosed to the other party by a third party without breach of a confidentiality obligation.

12.3 The obligations under this clause 12 shall survive the termination of this Agreement.

13. ASSIGNMENT OF RIGHTS AND OBLIGATIONS

13.1 The assignment of rights and obligations under this contract is only permitted with the prior written consent of the Provider. The provider is entitled to entrust third parties with the fulfillment of the obligations arising from this contract.

14 MISCELLANEOUS

14.1 This agreement and its amendments as well as all declarations, notification and documentation obligations relevant to the contract must be made in writing, unless another form has been agreed or is required by law.

14.2 The contract shall be governed by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. The place of jurisdiction is the registered office of the supplier, provided that the customer is a merchant, a legal entity under public law or a special fund under public law.

14.3 Should individual provisions of this agreement be invalid, this shall not affect the validity of the remaining provisions. In this case, the parties shall work together to replace ineffective provisions with provisions that correspond as closely as possible to the ineffective provisions.