Startseite » General terms and conditions
General terms and conditions
1. DEFINITIONS
Subscriber: the contracting party of the subscription.
Number of users: sum of users activated by the subscriber.
Automatic Renewal: A provision under which a Subscription renews at the end of the Subscription Term without the need for further notice.
SaaS service: SIMPL’s service provided as “Software-as-a-Service” as an online platform.
Software-as-a-Service: the provision of a service on a temporary basis by which access to the use of the software and presentation and management of the data is provided, whereby the software and data remain the property of SIMPL and are centrally hosted on its servers (rented or purchased).
Data: The data stored by SIMPL in a proprietary database, which SIMPL generates through SIMPL-owned software from SIMPL-owned hardware and stores on its cloud servers.
Decompiling: The reverse engineering, decompiling or disassembling of the Software for the purpose of achieving interoperability with other computer programs pursuant to Section 69 e of the German Copyright Act (UrhG).
Documentation: written information (whether contained in user or technical manuals, training materials, specifications, or other materials) pertaining to the Software and Hardware provided in any manner (including on USB flash drive, hard drive, or via online access) by SIMPL or its authorized SIMPL partners.
Fee: The subscription fee payable to SIMPL for the SaaS Service.
SIMPL Product: one of SIMPL’s copyrighted products, including related marketing materials, documentation, ToU and other supplemental materials.
Term: The term of the subscription designated in the contract (generally 12 months).
User: The User designated by the Contractual Partner for the highly personal use of the subscribed SaaS service. The Subscriber authorizes the User to act as the legal representative of the Subscriber with respect to the contractual relationship governed herein with SIMPL.
Service provided by SIMPL: The platform provided by SIMPL for the presentation and management of load carriers within the SaaS service, accessible to Account specifically defined users via an access controlled URL.
Upgrades: Any changes, improvements or revisions to the software. The classification of the modifications in question as an upgrade is at the sole discretion of SIMPL.
2. APPLICATION, CHANGES TO THESE TERMS OF USE
2.1
These ToU claim exclusive validity. Conflicting or supplementary general terms and conditions of the subscriber or user shall not become part of the contract, regardless of whether they were communicated during the conclusion of the contract or later and whether they were separately objected to. These ToU shall also remain fully valid for subsequent contracts and follow-up orders of subscribers or users.
2.2
SIMPL shall be entitled to amend this ToU, other terms and conditions and other contractual provisions referred to under this ToU and, in particular, to amend and adjust the services and procedures described under this ToU. SIMPL undertakes to carry out any changes only for an important reason. Good cause shall be deemed to exist in particular in the event of new technical developments, changes in case law or other equivalent reasons. If the planned change significantly disturbs the contractual balance between SIMPL and the user, it shall be omitted. Otherwise, any changes require the consent of the user.
3. SUBJECT MATTER OF THE CONTRACT, TERM, PROVISION AS SAAS
3.1
The subject of the SaaS Service Agreement entered into between Provider and Subscriber is the provision of the SaaS Service on high-performance servers (the “SaaS Service“) for a fee, limited to the Term, as described in the SaaS and Implementation Services Order Form or other Order Confirmation in accordance with this Agreement. The Parties agree that the Services to be provided under this Agreement as SaaS Service have the character of a continuing obligation under a rental and service agreement. The application of the law on contracts for work and services is not intended by the parties.
3.2
The scope of functions and the number of users of the services to be provided as part of the SaaS service are determined on the basis of the information provided in the order form.
3.3
The contract on the use of the SaaS service shall be concluded for a term of 12 months, unless otherwise agreed and recorded accordingly in the order confirmation. It shall be automatically renewed for another 12 months unless terminated by either party with three (3) months’ notice prior to the end of the contract. Notice of termination must be given in text form (e.g. by e-mail). The right to special termination or extraordinary termination remains unaffected.
3.4
SIMPL shall use commercially reasonable efforts to make the Software and the data retrievable through it available as an online service 24 hours a day, except that (i) during scheduled downtime (of which SIMPL will provide advance electronic notice); and (ii) during periods of unavailability caused by circumstances reasonably beyond SIMPL’s control, such as natural disasters, government intervention, flood, fire, earthquake, civil unrest, acts of terrorism, strike or other labor problems (not involving SIMPL employees), Internet service provider failure or delays, hosting service provider failure or delays, or denial of service attacks.
3.5
SIMPL will accept proper trouble reports from the subscriber during normal business hours. If the Subscriber reports a malfunction, it shall provide as detailed a description as possible of the respective malfunction in order to enable the most efficient troubleshooting possible. In the event of reports of malfunctions, SIMPL will initiate appropriate measures based on the circumstances communicated by the subscriber in order to localize the cause of the malfunction.
3.6
Subscriber agrees that in no event will Subscriber be subject to higher or more comprehensive service levels than those granted by the Hosting Service Provider (currently Microsoft Azure Cloud) SIMPL.
4. CLOUD STORAGE AND SECURITY
4.1
SIMPL maintains administrative, physical and technical safeguards to protect the security, confidentiality and integrity of the Software and/or Data. Such safeguards shall include, but not be limited to, measures to prevent access to the Software and/or Data and the use, modification or disclosure of the Software and/or Data by SIMPL’s employees other than (i) to provide the Subscribed Services and to prevent or correct service or technical problems, (ii) in accordance with legal requirements or (iii) pursuant to Subscriber’s express written permission. Clauses 5, 6 and 8 remain unaffected.
4.2
SIMPL does not provide any guarantees for the services and securities offered by SIMPL. Users are advised that according to the current state of the art, despite the greatest conscientiousness and care, program errors cannot be excluded with 100% certainty, and that it is not possible to develop software that is protected against all types of cyber attacks. The security of users’ data is particularly important to SIMPL. SIMPL will therefore do everything possible within the technical and organizational framework to protect them. The user acknowledges this.
5. PROPERTY RIGHTS
The software and data are protected by international copyright laws, treaties and other laws applicable in each individual case. SIMPL and its licensors own and retain all right, title and interest in and to the Software, including all copyrights, patents, trade secrets, trademarks and other intellectual property rights in and to the Software and the Data. By accepting this ToU, the user acknowledges that no ownership of the software or data is transferred to him/her at any time, nor are any permanent rights to use the software granted. The rights to use the data are regulated in section 8.
THE SOFTWARE AND DATA ARE PROVIDED AS SOFTWARE-AS-A-SERVICE. THE SOFTWARE IS NOT SOLD.
6. SUBSCRIPTION FEES
6.1
Subscriber shall pay the monthly fee as described in the Order Form or other Order Confirmation. Billing shall be made monthly on the first of each month based on the volume parameters available to the Subscriber at that time, with 100% of the monthly fee billed at the beginning of each contract month and payable within ten (10) business days.
6.2
If the number of users increases within a month, this will be charged additionally on a daily basis with the next invoice pro rata (based on a year with 360 days and a month with 30 days). If the number of users reduces, this will be taken into account from the following month. The subscriber is not entitled to a credit pro rata in the event of a reduction within one of the billing months.
6.3
SIMPL reserves the right to change the fees or applicable charges and to implement new fees and charges effective with the next Automatic Renewal, upon thirty (30) days prior notice to Subscriber (which may be by email).
7. REGISTRATION AND ACTIVATION
Subscriber acknowledges that registration is required in order for Subscriber and its users to take full advantage of the Software. If Subscriber is not registered, Subscriber has no right to access the Software and the limited warranty in this Agreement does not apply.
8. RIGHTS TO THE DATA
8.1
SIMPL, as the originator of the data, grants to the subscriber (i) non-exclusive, (ii) limited in time to the term of the Subscription, (iii) geographically limited to the area defined in the order confirmation, (iv) limited in content to the use in the respective service exclusively by the registered users of the Subscriber. This right of use is not transferable. Sublicenses may not be granted. The simple right of use includes the right to download the data via the export function of the SaaS service, provided that this is done for the purpose of own evaluation and creation of backup copies to a reasonable extent.
8.2
Statutory information and disclosure obligations of the subscriber remain unaffected. If these cannot be fulfilled by the data provided by SIMPL and if the data must be fed into third-party systems (in particular supra-regional systems), SIMPL shall be notified of this in advance and the parties shall be obliged to negotiate an appropriate extension of the license and increase in the subscription fees.
9. USAGE STATISTICS, TRACKING
Subscriber agrees that SIMPL may collect records and statistics about the use of the SaaS Service. Usage types collected in this form will only be used to verify the number of users and to improve SIMPL products and/or provide customized services to the Subscriber and will not be disclosed or shared with third parties except in anonymized form.
10. OBLIGATIONS OF THE SUBSCRIBER
10.1
The Subscriber shall treat all access data and personal data as well as his e-mail address and the stored passwords to his user account as strictly confidential. He has to update his deposited contact data constantly.
10.2
Subscriber may make a reasonable number of back-up copies of the Data, provided that Subscriber’s back-up copies are not used for other than archival purposes.
10.3
The establishment of a functional hardware and software environment for the use of the SaaS Service is the sole responsibility of the Subscriber.
10.4
The user assures to use the SaaS service only for himself. The user is prohibited from sharing the user account with third parties. The User undertakes to notify the Provider immediately if he becomes aware of any unauthorized access to his User account, any intrusion into electronic data or any other information relevant to the protection of the security of his User account.
11. NUMBER OF USERS
11.1
The granting of the right to use the SaaS service by SIMPL shall be limited by default with a fixed term.
11.2
The subscription fee is subject to a limited number of users by default. The Subscriber acknowledges that the SaaS Service is provided to the Subscriber with embedded devices for checking the number of Users. Subscriber agrees that the Number of Users check does not constitute a defect in the SaaS Service and that Subscriber releases SIMPL from any and all claims of any kind arising out of or in connection with the Number of Users check or its performance.
11.3
Subscriber agrees that SIMPL may retrieve information regarding Subscriber’s Product usage by means of verification of the number of Users, as this is an essential part of the Subscription Fee and the restrictions to which the Subscription is subject.
12. RESTRICTION OF USE, UNAUTHORIZED USE, DAMAGES
12.1
Subscriber agrees to take commercially reasonable steps to prevent unauthorized access to or use of the SaaS Service and Data and to notify SIMPL immediately of any such unauthorized access or use, and to use the SaaS Service and Data only in accordance with this Agreement, the Documentation, and applicable legal requirements and official regulations.
12.2
The subscriber is not allowed,
a)
make the SaaS Service or data available to or for the benefit of any person or user other than himself/herself and the designated user(s), unless otherwise expressly agreed,
b)
sell, resell, license, sublicense, distribute, make available, rent, or lease the SaaS Service or Data, or co-offer any of the Services or Content as an outside service provider or outsourcing offering or commercial hosting services,
c)
Use the SaaS Service or data to collect and store or transmit infringing, defamatory, or otherwise unlawful or tortious materials or to store or transmit materials in violation of any third party privacy rights,
d)
impair or prevent the integrity or performance of the SaaS Service or any data contained therein,
e)
attempt to gain unauthorized access to the SaaS Service, data, or any related systems or networks,
f)
Provide direct or indirect access to or use of the SaaS Service or Data in a manner that circumvents any contractual restriction on use, or use any of SIMPL’s Services to access or use any of SIMPL’s Intellectual Property Rights, except as permitted in this Agreement,
g)
Copy or cause to be copied the SaaS Service or any part thereof, any feature, function, or user interface of the SaaS Service
h)
Copy data except as permitted in this Agreement,
i)
Embed or mirror any portion of the SaaS Service or Data other than on Subscriber’s own intranets or otherwise for its own internal business purposes,
j)
Access the SaaS service or data to build a competing product or service; or
k)
perform reverse engineering of the SaaS Service (to the extent such restriction is permitted by law).
Any use of the SaaS Service or Data in violation of this Agreement by Subscriber or by Users that SIMPL believes threatens the security, integrity or availability of SIMPL Services may result in immediate suspension of the SaaS Service or access to Data, notwithstanding that SIMPL will take commercially reasonable steps to provide Subscriber with notice and an opportunity to cure any such violation or threat prior to such suspension.
12.3
The user shall indemnify SIMPL against all claims of third parties asserted against SIMPL, its bodies and its vicarious agents and which are based on a breach of the user’s obligations under these ToU. The indemnification shall also cover the costs of reasonable and appropriate legal representation to defend the claims and any defense against criminal prosecution.
12.4
For each case in which a contractual service is used without authorization in the Subscriber’s area of responsibility, the Subscriber shall pay damages in the amount of the remuneration that would have been incurred for the contractual use within the framework of the minimum contractual period applicable to this service. The subscriber reserves the right to prove that he/she is not responsible for the unauthorized use or that no damage or significantly less damage has occurred. The provider remains entitled to claim further damages.
13. LIMITED WARRANTY, AVAILABILITY
13.1
Unless expressly agreed otherwise, the SaaS service provided by SIMPL shall correspond to the current state of the art and shall comply with the product information and specifications provided by SIMPL in each case. SIMPL does not warrant that the SaaS Service is suitable under these ToU for purposes beyond the performance of SIMPL’s contractual obligations set forth herein.
13.2
In no event shall the User be entitled to demand the source code for the Software with respect to any defects.
13.3
In the event of only an insignificant reduction in the suitability of the services for use in accordance with the contract, the user shall have no claims based on defects. The strict liability of the provider due to defects that were already present at the time of the conclusion of the contract is excluded.
14. LIMITATION OF LIABILITY
Irrespective of the legal nature of the claim in question, the following provisions shall apply to any claims for damages and claims for reimbursement of futile expenses:
14.1
SIMPL shall be liable for all damages incurred by you as a result of gross negligence or intentional conduct on the part of SIMPL or as a result of culpable injury to life, limb or health, for which SIMPL has assumed a guarantee or for which SIMPL is liable under the Product Liability Act. In all other cases, SIMPL’s liability for damages shall be limited to the breach of material contractual obligations. Essential contractual obligations are only those obligations whose fulfillment makes the proper execution of the contract possible and on whose fulfillment you may rely. SIMPL’s liability for loss of data shall be limited to the typical expenses necessary for recovery, which are normal and customary if backup copies have been made.
14.2
In the event of a negligent breach of material contractual obligations by SIMPL, SIMPL’s liability shall be limited to foreseeable damages typical for the contract.
14.3
The above limitations of liability shall also apply with respect to all representatives of SIMPL, in particular with respect to its managing directors, legal representatives, employees and other vicarious agents.
15. INTEGRATION OF THIRD PARTY SERVICES AND/OR ACCOUNTS
Certain features of the SaaS enable Subscriber to integrate the SaaS Service with third party services (the “Third Party Services”) such as SAP, Salesforce, MS Dynamics, etc. through an application programming interface (the “API”) provided by such third parties. By enabling these features, Subscriber grants SIMPL access to data stored by the Third Party Services and provided through the API, as well as certain rights to use features of the Third Party Services provided through the API, to enable SIMPL to identify relevant data to be stored or processed within the SaaS and to provide the SaaS.
16. USER CONTRIBUTIONS
16.1
The SaaS provides users with the ability to contribute or publish content, including but not limited to text, writings, video, audio, photos, graphics, comments, suggestions or personal information or other materials (collectively, “Contributions”). The contributions can be viewed by other users of the SaaS and via third-party websites. Therefore, all contributions submitted by the User may be processed in accordance with the Website’s Privacy Policy. When the user creates or provides contributions, he thereby represents and warrants:
a)
The creation, distribution, transmission, public display or performance, as well as accessing, downloading or copying of its contributions does not violate the proprietary rights, including but not limited to copyright, patent, trademark, trade secret, etc., of any third party. Third Party.
b)
He is the author and owner or has the necessary licenses, rights, consents, releases and permissions to authorize SIMPL and other users of SIMPL to use his contributions in the manner provided in these ToU.
c)
He has the written consent, release and/or permission of each individual identifiable person in his/her Contributions to use the name or likeness of each individual identifiable person to enable the inclusion and use of his/her Contributions in any manner in connection with the SaaS Service.
d)
His posts are not false, inaccurate, or misleading.
e)
His posts are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings or other forms of solicitation.
f)
His posts are not obscene, lewd, lascivious, filthy, violent, harassing, abusive, defamatory or otherwise objectionable (as determined by SIMPL from time to time).
g)
His posts do not ridicule, mock, denigrate, intimidate or insult anyone.
h)
His posts will not be used to harass or threaten others (in the legal sense of those terms) and to promote violence against any particular person or group of persons.
i)
His contributions do not violate any applicable laws, rules or regulations.
j)
His contributions do not violate the privacy or publication rights of a third party.
k)
His posts do not contain material that solicits personal information from anyone under the age of 18 or exploits anyone under the age of 18 in a sexual or violent manner.
l)
His posts do not violate any applicable law regarding child pornography or any other provision protecting the health or welfare of minors.
m)
His posts do not contain offensive comments based on race, national origin, gender, sexual preference, or physical disability.
n)
His posts do not contain offensive comments based on race, national origin, gender, sexual preference, or physical disability.
16.2
Any Post that violates the foregoing shall constitute a breach of this ToU and may result in, among other things, termination or suspension of the User’s rights to use the SaaS Service.
16.3
The User agrees that SIMPL may access, store, process and use any information and personal data provided by the User to SIMPL in accordance with the terms of the Privacy Policy and ToU and the User’s choice (including preferences).
16.4
SIMPL is not liable for any statements or representations made in any postings provided by the user in any area of the SaaS. The user shall be solely responsible for his/her postings on the website and expressly agrees to hold SIMPL harmless from any responsibility and to refrain from any legal action against SIMPL in relation to his/her postings.
17.HIGH-RISK ACTIVITIES
The SaaS Service is not fault-tolerant and is not designed, manufactured or intended for use or resale as control equipment in hazardous environments that require fail-safe performance, such as nuclear power facilities or communications, air traffic control, life support or weapons systems, where failure of the Software could result directly in death or personal injury or serious physical or environmental damage (the “High Risk Activities”). Accordingly, SIMPL and its suppliers specifically disclaim any implied or express warranties of fitness for high risk activities.
18. DATA PROTECTION
By accepting this ToU, the user agrees to the validity of the SIMPL Privacy Policy as amended from time to time. https://simpltech.de/datenschutz
19. CONFIDENTIALITY
19.1
The parties are obligated to keep permanently secret, not to disclose to third parties, record or otherwise use all information about the respective other party that has become known to them or becomes known to them in connection with this Agreement and that is marked as confidential or is identifiable as business and trade secrets (“Confidential Information”) on the basis of other circumstances, unless the respective other party has expressly consented in writing to the disclosure or use or the information is required to be disclosed by law, court decision or an administrative decision.
19.2
The information is not Confidential Information for purposes of this Section 19 if it is (i) were previously known to the other party without the information being subject to a confidentiality obligation, (ii) are generally known or become known without breach of the confidentiality obligations assumed; or (iii) disclosed to the other party by a third party without breach of a confidentiality obligation.
20. JURISDICTION
20.1
The place of performance of the obligations arising from this contract shall be the registered office of SIMPL. This contract shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). This shall of course be without prejudice to any mandatory provisions of criminal law applicable to the User’s registered office or the location of the relevant IT infrastructure.
20.2
The place of jurisdiction for all disputes arising from this contractual relationship shall be the registered office of SIMPL. The right of SIMPL to also choose another, statutory place of jurisdiction shall remain unaffected.
21.SEVERABILITY CLAUSE
Should one or more provisions of these ToU be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. The parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic intent of the parties.
22. GENERAL
22.1
The authoritative contractual language between the parties is German. To the extent that SIMPL provides translations of these ToU or other documents, it is a non-binding service. Only the German version of this ToU is legally binding.
22.2
The provisions in clauses 1, 5, 6, 8, 10 to 22 shall remain valid after termination of the subscription regarding the use of the SaaS service.
22.3
All notices under this ToU shall be addressed to:
SIMPL Technologies GmbH
Sanitätsrat-Hallermann Straße 13
44359 Dortmund
