Terms and conditions
As of 21.11.2019 – In case of doubt, the original German version of these terms and conditions is legally binding.
Allgemeine Geschäftsbedin­gungen (AGB)
1. Applicability of the contractual terms and conditions
(1) For the sale of standard software, the rental models of “Software as a Service” (SaaS) or “Application Service Provider” (APS), the operation (Application Management), the creation and adaptation of individual software (Customized Software / Individual Software), the additionally agreed services, such as maintenance, care, training or consulting, and for pre-contractual obligations, these General Terms and Conditions of Contract apply exclusively in business dealings, unless otherwise agreed. Other contractual conditions do not become part of the contract, even if MSO Solutions GmbH does not explicitly contradict them.
(2) Even if no further reference is made to this in the future conclusion of similar contracts, the General Terms and Conditions of Contract of MSO Solutions GmbH shall apply exclusively in the version available at staging.mso.de/agb at the time of the customer’s declaration, unless the contractual partners agree otherwise in writing.
(3) For the delivery of the standard software, the sales law regulations of §§ 433 ff. BGB (GERMAN CIVIL CODE). For the creation and adaptation of individual software, the contract for work and services standards of §§ 631 ff. BGB are applicable. For supplementary services, for example installation, parameterization, maintenance and training, the service-law provisions of §§ 611 ff. BGB SHALL APPLY. In the area of hosting on external servers and “Software as a Service” (SaaS) or “Application Service Provider” as well as operation (application management), the standards of tenancy law pursuant to sections 535 et seq. of the German Civil Code (BGB) shall apply in addition to the provisions of service law. BGB.
2. Conclusion of Contract
(1) Offers of MSO Solutions GmbH are subject to change and non-binding, unless the offer is designated as binding in writing. A legal binding comes into effect only by a contract signed by both parties or by a written order confirmation of MSO Solutions GmbH, furthermore by the fact that MSO Solutions GmbH starts to provide the service after the order. MSO Solutions GmbH can demand written confirmations of verbal contract declarations of the customer.
(2) The customer is bound to his declarations to conclude contracts for four weeks.
3. Subject matter of the contract, scope of services
(1) The subject of these contractual terms and conditions is, in addition to the sale and delivery of standard software, the provision of software by means of SaaS (cf. para. 1a) or ASP (cf. para. 1b), the creation and adaptation of individual software (Customized Software / Individual Software) and its operation (Application Management) as well as the granting of the rights of use according to § 4, furthermore the services ordered together with the contract, such as maintenance as well as maintenance, care or training as well as hosting on external servers.
(1a) For the provision of SaaS services, software in the respective current version is made available to the Customer via the Internet against payment for the duration of the respective contract. For this purpose MSO Solutions GmbH has set up the (standardized) software on an external server, which is accessible for the customer via the Internet. The respective current functional scope of the (standardized) software results from the current service description on the company website of MSO Solutions GmbH or from the contractual agreement with the customer.
(1b) In the case of APS as a service, MSO Solutions GmbH sets up an individual server for the customer, on which the installation of the individual software as well as the import of updates via the Internet is carried out. The services of MSO Solutions GmbH are provided exclusively via “remote access”, by means of VPN access to this server.
(1c) Operation (Application Management) includes the setup of the (customer) server, the installation and the import of updates. The services of MSO Solutions GmbH are again provided exclusively via “remote access”, by means of VPN access to this server. The customer himself or an IT service provider commissioned by the customer is responsible for the server itself and for the security.
(2) Prior to the conclusion of the contract, the Customer has verified that the choice as well as the specification of the contractual software correspond to its wishes and needs. He is aware of the essential functional features and conditions of the software, in particular of the rental models SaaS and ASP as well as of the operation (application management).
(3) Decisive for the scope, type and quality of the deliveries and services is the contract signed by both parties or the order confirmation of MSO Solutions GmbH, otherwise the offer of MSO Solutions GmbH. Other specifications or requirements shall only become part of the contract if the contracting parties have agreed to this in writing or MSO Solutions GmbH has confirmed them in writing. Subsequent changes to the scope of services require written agreement or written confirmation by MSO Solutions GmbH.
(4) Product descriptions, representations, test programs, etc. are performance descriptions, but not guarantees. A guarantee requires a written declaration by the management of MSO Solutions GmbH.
(5) The customer receives – depending on his selection – the software or access to the software consisting of the installation program and the user manual. The technique of delivery of the software depends on the agreements; in the absence of any other agreement, the program and manual are delivered online. The customer has no claim to the transfer of the source program/code.
(6) MSO Solutions GmbH provides all deliveries and services according to the state of the art. In the case of the rental models ASP SaaS, MSO Solutions GmbH continuously develops the software provided to the customer via internet and will improve it by continuous updates and upgrades. The same applies to the area of operation (application management).
4. Rights of the customer to the software
(1) The software with integrated manual via download as well as the sending of the installation instructions and the license key are legally protected. Copyrights, patent rights, trademark rights and all other protective rights to the software as well as to other objects, which MSO Solutions GmbH hands over or makes accessible to the customer within the scope of the contract initiation and execution, are exclusively entitled to MSO Solutions GmbH in the relationship of the contractual partners. As far as third parties are entitled to the rights, MSO Solutions GmbH has corresponding exploitation rights.
(2) The customer is only entitled to process his own data with the program himself in his own company for his own purposes. The location of the server depends on the type of the agreed contractual service. Thus, the server may be at the customer’s premises. In the case of software provision by means of SaaS, an external server is used. In the case of SaaS as well as ASP, MSO Solutions GmbH grants the customer the non-exclusive and non-transferable right to use the software designated in the contract for the duration of the contract as intended. For ASP as well as for Application Management the customer is solely responsible for the server used and its security. Further contractual rules of use, such as the limitation to a number of workstations or persons, are to be technically set up and practically adhered to. MSO Solutions GmbH hereby grants the customer the necessary authority for this use as a simple right of use, including the right to correct errors. For the duration of the right of use § 13 applies.
(3) The customer may create the backup copies of the programs necessary for a secure operation. The backup copies must be stored securely and, to the extent technically possible, must bear the copyright notice of the original data carrier or the version of the Software transferred online. Copyright notices, trademarks and product identifications may not be deleted, changed or suppressed. Copies that are no longer required must be deleted or destroyed. The integrated manual transmitted via download, the sent installation instructions as well as the license key and other documents provided by MSO Solutions GmbH may only be copied for internal company purposes.
(4) The customer is not entitled to make the contractual software available to third parties for use against payment or free of charge. The customer is thus expressly not permitted to sublet the contractual software.
(5) The rules according to para. 2 and para. 3 shall also apply if the customer carries out error correction or (as far as permissible) other processing of the programs or uses the software for training purposes.
(6) The customer may decompile the interface information of the programs only within the limits of § 69 e UrhG and only after he has informed MSO Solutions GmbH in writing of his intention and has asked for the transfer of the necessary interface information with a period of at least two weeks. For all knowledge and information that the customer obtains about the software in the course of decompiling, § 14 applies. Prior to any involvement of third parties, the customer shall provide MSO Solutions GmbH with a written declaration of the third party that the third party commits itself directly to MSO Solutions GmbH to comply with the rules set forth in §§ 4 and 14.
(7) All other acts of exploitation, in particular the renting, lending and distribution in tangible or intangible form, the use of the Software by and for third parties, for example through outsourcing, computer center activities, application service providing) are not permitted.
(8) Contractual objects, in particular also documents, proposals or test programs of MSO Solutions GmbH, which become accessible to the customer before or after the conclusion of the contract, are considered intellectual property and business and trade secrets of MSO Solutions GmbH. They may not be used in any way without written permission of MSO Solutions GmbH and are to be kept secret according to § 14.
(9) The customer acquires the same rights to modified, extended or newly created software as to the standard software.
5. Time of performance, delays, place of performance
(1) Information about delivery and performance times are non-binding, unless they have been designated as binding in writing by MSO Solutions GmbH. MSO Solutions GmbH can provide partial services as far as the delivered parts can be reasonably used by the customer.
(2) Delivery and service deadlines are extended by the period in which the customer is in default of payment from the contract and by the period in which MSO Solutions GmbH is prevented from delivery or service by circumstances for which MSO Solutions GmbH is not responsible and by a reasonable start-up time after the end of the impediment. These circumstances also include force majeure and labor disputes. Deadlines shall also be deemed to be extended by the period during which the customer fails to cooperate in breach of the contract, for example by failing to provide information, failing to provide access, failing to supply materials or failing to make employees available.
(3) If the contractual partners subsequently agree on other or additional services which affect agreed deadlines, these deadlines shall be extended by a reasonable period of time.
(4) Reminders and setting of deadlines by the customer must be in writing to be effective. A grace period must be reasonable. A period of less than two weeks shall only be reasonable in case of special urgency.
(5) The place of performance of services shall be the place where the service is to be rendered. Otherwise, the place of performance for all services arising from and in connection with this contract is the registered office of MSO Solutions GmbH in Munich.
6 Contractual Obligation and Termination of Contract
(1) Any termination of the further exchange of services, for example in case of rescission, reduction, termination for cause, damages instead of performance, must always be threatened by naming the reason and setting a reasonable deadline for remedy – usually at least two weeks – and can only be declared within two weeks after expiration of the deadline. In the cases provided for by law, including Section 323 (2) of the German Civil Code (BGB), the deadline may be waived. Anyone who is wholly or predominantly responsible for the disruption may not demand reversal.
(2) All declarations in this context must be made in writing to be effective.
7. Remuneration, Payment
(1) The agreed remuneration shall be
after delivery or provision of the software (application and licenses) at 100%,
for customizing/individual software 50% upon commissioning and order confirmation and 50% upon delivery,
for services such as training and consulting after respective execution at 100%,
for maintenance and support, SaaS, APS as well as application management at 100% for the respective applicable performance period (usually 12 months) in advance and after receipt of the respective invoice by the customer without deduction and payable within 10 days.
(2) In the absence of any other agreement, the respective price and conditions list of MSO Solutions GmbH, which is included in the contract offer, shall apply.
(3) Value added tax is added to all prices.
(4) The customer can only set off claims recognized by MSO Solutions GmbH or legally established claims. Except for the area of § 354a HGB (German Commercial Code), the customer can only assign claims from this contract to third parties with prior written consent of MSO Solutions GmbH. The customer is only entitled to a right of retention or the defense of non-performance within this contractual relationship.
8. Obligations of the customer
(1) The customer is obligated to inspect all delivery items of MSO Solutions GmbH immediately upon delivery, within the scope of acceptance or upon making them accessible in a professional manner in accordance with the regulations of commercial law and to notify MSO Solutions GmbH of any detected defects in writing with a precise description of the defect. The customer shall thoroughly test each module for usability in the specific situation before starting productive use. This also applies to programs which the customer receives within the scope of the warranty and a maintenance contract.
(2) The customer shall take reasonable precautions in the event that the program does not function properly in whole or in part, for example by means of data backup, documentation of software use, fault diagnosis, regular testing of results, emergency planning. It is his responsibility to ensure the functionality of the working environment of the program.
(3) The Customer shall be obliged to prevent unauthorized access by third parties to the protected areas of the Software by taking appropriate precautions. For this purpose, the Customer shall, to the extent necessary, instruct its employees to comply with copyright law.
(4) Notwithstanding the obligation to back up data, the Customer itself shall be responsible for entering and maintaining its data and information required to use the ASP and SaaS Services.
(5) The Customer is obliged to check its data and information for viruses or other harmful components before entering them and to use state-of-the-art virus protection programs for this purpose.
(6) The Customer shall generate a “User ID” and password for accessing the use of the SaaS and ASP services itself, which are required for further use of the SaaS and ASP services. The Customer is obliged to keep the “User ID” and password secret and not to make them accessible to third parties.
(7) The Customer undertakes not to store any content on the external storage space whose provision, publication or use violates applicable law or agreements with third parties.
(8) The customer is solely responsible for the server in the area of the ASP.
(9) In the area of operation (application management), the Customer shall be responsible for the server itself and for security itself or by means of an IT service provider commissioned by the Customer.
9. Material Defects
(1) At the time of the passing of risk, the Software shall have the agreed quality and shall be suitable for the contractually intended use or, in the absence of an agreement, for normal use. It satisfies the criterion of practical suitability and has the quality customary for software of this type; however, it is not free of defects. A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation or similar is not a defect. An insignificant reduction in quality shall be disregarded.
(2) In the case of material defects, MSO Solutions GmbH may initially provide subsequent performance. The supplementary performance is carried out at the discretion of MSO Solutions GmbH by eliminating the defect, by delivery or provision (update/ upgrade) of software that does not have the defect, or by MSO Solutions GmbH showing possibilities to avoid the effects of the defect. Due to a defect, at least three attempts at rectification are to be accepted. An equivalent new program version or the equivalent previous program version without the defect is to be accepted by the customer if this is reasonable for him.
(3) The customer supports MSO Solutions GmbH in the error analysis and defect removal, in particular by describing occurring problems concretely, informing MSO Solutions GmbH comprehensively and granting MSO Solutions GmbH the necessary time and opportunity for the defect removal. MSO Solutions GmbH may, at its discretion, carry out the defect rectification on site or at its business premises. MSO Solutions GmbH can also provide services by remote maintenance. The customer has to provide the necessary technical requirements at his own expense and has to grant MSO Solutions GmbH electronic access to the software after prior announcement.
(4) The contractual partners agree on the following error classes and reaction times:
a) Error class 1: Defects preventing operation: The error prevents business operations at the customer; a workaround is not available: MSO Solutions GmbH shall immediately, at the latest within four hours after the error message, begin with the elimination of the error and shall continue it with vigor until the error has been eliminated, as far as reasonable also outside the usual working hours (weekdays 8.00 a.m. to 5.00 p.m.).
b) Error class 2: Defects hindering operation: The error hinders the customer’s business operations considerably; however, the use of the software is possible with workarounds or with temporarily acceptable restrictions or difficulties: MSO Solutions GmbH will start with the error removal on the same day if the error message is received before 10.00 a.m., and at the beginning of the next working day if the error message is received later, and will continue until the error is removed within the usual working hours. MSO Solutions GmbH can first show a workaround solution and eliminate the error later, if this is reasonable for the customer.
c) Error class 3: Other defects: MSO Solutions GmbH will start with the elimination of the error within one week or will eliminate the error only with the next program version, if this is reasonable for the customer.
(5) The time limits according to para. 4 start with an error message according to § 8 para. 1. For the calculation of the time limit § 5 para. 2, 3 is valid. In case of disagreement about the allocation of an error into the classes according to para. 4 the customer can demand the allocation into a higher error class. He will reimburse MSO Solutions GmbH for the additional effort if he does not prove that his classification was correct.
(6) MSO Solutions GmbH can demand compensation for additional expenses resulting from the fact that the software was changed, used outside the specified environment or operated incorrectly. It can demand compensation for expenses if no defect is found and the customer had not raised the defect complaint without negligence. The burden of proof lies with the customer. § 254 BGB applies accordingly.
(7) If MSO Solutions GmbH finally refuses the supplementary performance or if this finally fails or is not reasonable for the customer, the customer can either withdraw from the contract within the scope of § 6 or reduce the remuneration appropriately and additionally demand damages or reimbursement of expenses according to § 11. The claims shall become time-barred in accordance with § 12.
10. Defects of title
(1) MSO Solutions GmbH warrants that the contractual use of the software by the customer does not conflict with any rights of third parties. In the case of defects of title, MSO Solutions GmbH warrants that it will provide the customer, at its discretion, with a legally unobjectionable opportunity to use the software or equivalent software.
(2) The customer shall inform MSO Solutions GmbH immediately in writing if third parties assert property rights, for example copyrights or patent rights to the software. MSO Solutions GmbH supports the customer in his defense against the attacks of the third party by advice and information.
(3) § 9 paragraph 2, 6, 7 apply accordingly.
(1) MSO Solutions GmbH provides compensation for damages or reimbursement of futile expenditures, regardless of the legal reason, such as for example from legal and quasi-legal obligations, material and legal defects, breach of duty and tortious acts) only to the following extent:
a) The liability in case of intent, fraudulent intent and from warranty is unlimited.
b) In the event of gross negligence, MSO Solutions GmbH shall be liable to the amount of the typical damage foreseeable at the time of conclusion of the contract.
c) In case of simple negligent violation of a cardinal obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place, the compliance of which the contractual partner regularly relies on and may rely on and the violation of which endangers the achievement of the purpose of the contract) MSO Solutions GmbH is liable in the amount of the typical and at the time of the conclusion of the contract foreseeable damage, however, not exceeding EUR 50,000.00 for all cases of damage arising from and in connection with the contract as a whole.
(2) The objection of contributory negligence remains open to MSO Solutions GmbH. The customer has in particular the duty to secure data and to defend against malware in each case according to the current state of the art.
(3) In case of injury to life, body and health and in case of claims from the product liability law, the legal regulations apply without restrictions.
(4) MSO Solutions GmbH is not liable for the loss of data insofar as the damage is based on the fact that the customer has omitted to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.
12. Statute of limitations
(1) The period of limitation shall be
a) in the case of material defects, one year from delivery of the Software for claims for repayment, rescission or reduction, but for properly notified defects not less than three months from submission of the effective declaration of rescission or reduction;
b) in the case of other claims arising from material defects, one year;
c) in the case of claims based on defects of title, two years if the defect of title does not lie in a right of a third party on the basis of which the third party can demand the return of the items specified in Section 3 (5) or demand that they cease to be used;
d) in the case of claims for damages or reimbursement of futile expenses not based on material defects or defects of title, two years; the period shall commence at the time when the customer became aware of the circumstances giving rise to the claim or should have become aware without gross negligence,
(2) The limitation period shall commence at the latest upon expiry of the maximum periods stipulated in § 199 of the German Civil Code (BGB). In the case of damages and reimbursement of expenses arising from intent, gross negligence, warranty, fraudulent intent and in the cases specified in Section 11 (3), subsection (1) shall not apply.
13 Beginning and end of the customer’s rights
(1) Ownership of delivered items and the rights under § 4 shall not pass to the Customer until the contractual remuneration has been paid in full. Prior to this, the customer only has a provisional right of use, which is only based on the law of obligations and can be revoked according to paragraph 2.
(2) MSO Solutions GmbH can terminate the rights according to § 4 for an important reason under the conditions of § 6. An important reason is given if MSO Solutions GmbH, taking into account all circumstances of the individual case and weighing the interests of both parties, cannot be expected to allow the software to remain with the customer permanently, especially if the customer violates § 4 and § 8 in a significant way.
(3) If the rights according to § 4 do not arise or if they end, MSO Solutions GmbH can demand from the customer the return of the provided objects or the written assurance that they have been destroyed, furthermore the deletion or destruction of all copies of the objects and the written assurance that this has been done.
14 Secrecy and Data Protection
(1) The contracting parties undertake to treat as confidential all items, in particular software, documents, information, which are protected by law or contain business or trade secrets or are designated as confidential, received from the other contracting party before or during the performance of the contract, also beyond the end of the contract, unless they are publicly known without any breach of the duty of confidentiality. The contractual partners shall store and secure these items in such a way that access by third parties is excluded.
(2) The customer shall make the contractual objects accessible only to the employees and other third parties who require access for the performance of their official duties. He instructs these persons about the need for secrecy of the objects.
(3) The MSO Solutions GmbH processes the customer’s data necessary for the business transaction in compliance with the data protection regulations. MSO Solutions GmbH is allowed to name the customer as a reference customer after commissioning the services and to use his logo as a reference on the website staging.mso.de and in presentations.
(1) Changes and additions to the contract must be made in writing to be effective. The written form requirement can only be waived in writing. Transmission in text form, in particular by fax or e-mail, shall also be sufficient to comply with the written form requirement.
(2) The law of the Federal Republic of Germany shall apply, excluding the conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods. The place of performance and jurisdiction for all disputes arising from and in connection with this contract is, for contracts with merchants, the registered office of MSO Solutions GmbH in Munich.
(3) The contracting parties agree that in the event of any disputes arising from or in connection with this contract, contract extensions or supplements, which they are unable to settle among themselves, they shall call upon the arbitration board of the German Association for Law and Information Technology (www.dgri.de/), in order to settle the dispute in full or in part, provisionally or finally, in accordance with its arbitration rules in the version valid at the time of the initiation of arbitration proceedings. The statute of limitations for all claims arising from the matter in dispute shall be suspended from the time of the request for conciliation until the end of the conciliation proceedings; Section 203 of the German Civil Code shall apply mutatis mutandis.