General Terms of Service of 5FSoftware GmbH for Business Users
Sec. 1 – Area of application
(1) These Terms of Service apply to all services offered by the company 5FSoftware GmbH (hereinafter referred to as “5FSoftware”) for Business Users for the communication with their customers. Business Users are those clients who are entitled on the basis of the agreement concluded with 5FSoftware to communicate with their customers via a joint project room using the platform and software provided by 5FSoftware via the Internet. Business users are those customers who, under the agreement concluded with 5FSoftware, are entitled to communicate with their customers via a common project space via the platform and software provided to them by 5FSoftware via the Internet.
(2) The Terms of Service are an integral part of all contracts concluded with the Business Users unless otherwise expressly agreed in writing. Deviating or conflicting conditions are not recognised by 5FSoftware, unless 5FSoftware has expressly agreed to them in writing. Deviating or conflicting terms and conditions are not accepted by 5FSoftware unless 5FSoftware has expressly agreed to them in writing.
Sec. 2 – Scope of the contract
(2) 5FSoftware is not liable for the interoperability of its services with the hardware and software of the Business Users and their customers, unless 5FSoftware has expressly guaranteed the compatibility of the hardware and software.
(3) 5FSoftware expressly reserves the right to make changes to the service description. Changes to the service description will be notified to business users in writing, by fax or by e-mail. The changes will take effect if the business user does not object to the changes within one month of receipt of the change notice in text form and 5FSoftware has informed the business user in the change notice of the right of objection and the period applicable for this purpose. If the business user objects in text form, 5FSoftware is entitled to terminate the contract within two weeks after receipt of the objection. Excluded from the change reservation are such changes that relate to obligations of the parties, the fulfilment of which makes the use of the Services possible in the first place and on whose compliance the other party regularly trusts or may rely (essential contractual obligations).
(4) 5FSoftware is permitted to involve subcontractors for providing its services. Involving subcontractors does not release 5FSoftware from its sole obligation to the Business Users to fully perform the contract. The use of subcontractors does not release 5FSoftware from its sole obligation to business users to fully fulfill the contract.
(5) 5FSoftware provides the services as they were available at the time of conclusion of the contract with the respective business user in accordance with the service description in force at that time. The business user is not entitled to any specific design or equipment of the services. 5FSoftware reserves the right to change or temporarily discontinue services in its sole discretion, taking into account the interests of business users, provided that this does not affect essential contractual obligations and this is reasonable for the business user. The procedure referred to in paragraph 3 shall apply accordingly.
Sec. 3 – Provision of software
(1) For the duration of the contract, 5FSoftware provides the Business User with the software required to use the services pursuant to Sec. 2 (1) in the latest version via the Internet against payment. For this purpose, 5FSoftware sets up the software on a server which can be accessed by the Business User via the Internet. 1 required software in the current version available over the Internet for a fee. For this purpose, 5FSoftware sets up the software on a server that is accessible to the business user via the Internet.
(2) The current range of functions of the provided software is determined by its current service description.
(3) 5FSoftware shall immediately eliminate all errors in the software it develops in accordance with the technical possibilities. An error occurs if the software does not perform the functions specified in the service description, provides incorrect results or otherwise does not function properly, so that the use of the software is impossible or limited. In the event of errors in the third-party software provided via 5FSoftware, 5FSoftware will work towards immediate correction of errors.
Sec. 4 – Rights of use of the software
(1) 5FSoftware grants the Business User the non-exclusive and non-transferable right to use the software provided for the use of the services pursuant to Sec. 2 (1) intended for the duration of the contract within the scope of the PaaS or cloud services. 1 to use the software provided for the duration of the contract within the framework of the PaaS or Cloud services as intended.
(2) The business user may only edit the software if this is covered by the intended use of the software according to the current service description.
(3) The business user may only reproduce the software if this is covered by the intended use of the software according to the current service description. The necessary duplication includes loading the software into memory on the server of 5FSoftware, but not even the temporary installation or storage of the software on data carriers (such as hard drives or similar) of the hardware used by the business user.
(4) Business Users are entitled to make the software available to their customers for the purpose of communicating with them via a joint project room to the extent required for the contractual use. Business Users are not entitled to make the software available for use to other third parties for a fee or free of charge. The Business User is not permitted to sublease the software. Business users are not entitled to make the software available to other third parties for use for consideration or free of charge. The business user is not allowed to re-rent the software.
Sec. 5 – Granting of storage space
(1) 5FSoftware leaves a defined storage space on a server to the business user for storing his data. The business user may store content on this server to the extent described in the individual contract specifications and in accordance with the technical specifications described on the 5FSoftware website under https://5fsoftware.de. If the storage space is no longer sufficient to store the data, 5FSoftware will inform the business user of this.
2. 5FSoftware shall ensure that the stored data is accessible via the Internet.
(3) The business user is entitled to make the storage space provided to him by 5FSoftware available to his customers for the purpose of communicating with him via a common project space. The business user is not entitled to leave the storage space granted to him to another third party for use in part or in full, for a fee or free of charge.
(4) 5FSoftware is obliged to take appropriate precautions against data loss and to prevent unauthorized access by third parties to the data of the business user. To do this, the database content is replicated live in two synchronized and physically separate database systems. 5FSoftware will perform daily full backups of the databases. Contents of current workflow actions are cached in a second high-availability database system.
(5) In any case, the business user remains the sole owner of the data set by him and can therefore demand the release of individual or all data at any time.
(6) Upon termination of the contractual relationship, 5FSoftware will immediately release to the business user all data stored on the space allocated to him. The data is handed over at the discretion of the business user either by handing over data carriers or by sending it over a data network. The business user is not entitled to receive the software suitable for the use of the data.
Sec. 6 – Use of the services by customers of Business Users
Sec. 7 – Support
(1) Support services for Business Users shall be provided by the partner companies of 5FSoftware in accordance with paragraph 2. 2nd level support is provided by 5FSoftware via email service for a separate fee. 2nd Level Support provides 5FSoftware as a mail service for a separate fee.
(2) 5FSoftware informs on its website under https://5fsoftware.de about the accessibility of the partner companies responsible for 1 Level Support.
Section 8 Interruption/impairment of accessibility
Adjustments, modifications and additions to the services of the contract and measures designed to detect and remedy malfunctions may lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons. 5FSoftware is solely liable for the consequences of limited availability within the scope of an availability promised to the business user in the service description. 5FSoftware is not liable in cases of force majeure (failure of power supply, internet failure, fire, explosion, earthquakes, storms, floods, industrial action measures not for which 5FSoftware is not responsible, etc.).
Sec. 9 Duties of the client
(1) 5FSoftware is exclusively a technical service provider. 5FSoftware does not acquire any knowledge of the content posted via the user access of the business users, a control of the content by 5FSoftware does not take place. 5FSoftware does not monitor business users or their customers who access the contractual services. The content posted via the user access of the business users represents third-party content for 5FSoftware, 5FSoftware does not adopt this by providing the technical platform and bears no responsibility for it.
(2) The Business User undertakes not to store any illegal content on the storage space provided which violates laws, official regulations, or the rights of third parties. In particular, the Business User is prohibited to In particular, the business user is prohibited from
- infringe the intellectual property rights of third parties, such as trademark, copyright and name rights,
- discontinue offensive, defamatory, pornographic, youth-threatening or otherwise criminally relevant content,
- unreasonably harass other users and/or third parties, for example by unsolicited advertising (spam) or inappropriate or sexualcommunication,
- use software and/or scripts beyond the functionalities and interfaces provided by 5FSoftware, in particular if they block, modify, copy and/or overwrite 5FSoftware services and these services are required for the contractual use of 5FSoftware,
- the services provided by 5FSoftware, the security systems used by 5FSoftware or the retrievable contents by data modification (Section 303a StGB), computer sabotage (Section 303b StGB), falsification of relevant data (Section 269, 270 StGB), suppression of relevant data (Section 274 StGB), computer fraud (Section 263a StGB), spying on data (Section 202a StGB), interception of data (Section 202b StGB) or other criminal offences. Any attempt to commit the aforementioned offences will be reported by 5FSoftware. The business user is liable for the user access esism set up for the business user and their use by his customers or other third parties as well as for his own actions. 5FSoftware is entitled to immediately block the storage space if there is a reasonable suspicion that the stored data is illegal and/or violates the rights of third parties. A well-founded suspicion of illegality and/or infringement exists in particular if courts, authorities and/or other third parties inform 5FSoftware. 5FSoftware will inform the business user of the lock and the reason for this immediately. The lock is lifted as soon as the suspicion is refuted.
(3) The business user is obliged to prevent unauthorized access by third parties to the protected areas of the software by appropriate precautions. For this purpose, the business user will, if necessary, inform his employees of compliance with copyright.
(4) Without prejudice to the obligation of 5FSoftware to secure data, the business user is responsible for the input and maintenance of his data and information required for the use of the contractual services.
(5) The business user is responsible for the integration of third-party software or software services and warrants that the third-party software will function correctly with the software. This applies even if the integration of the third-party software or software services is technically made possible by 5FSoftware. This does not apply to the extent that 5FSoftware integrates the third-party software or software services as part of the service.
(6) The business user is obliged to check his data and information for viruses or other harmful components before entering them and to use state-of-the-art anti-virus programs for this purpose.
(7) The business user will generate a “User ID” and a password for access to the use of the contractual services, which are necessary for the further use of the contractual services. The business user is obliged to keep “User ID” and password secret and not to make it accessible to unauthorized third parties.
(8) The content stored by the business user or his customer on the storage space intended for him may be protected by copyright and data protection law. The business user hereby grants 5FSoftware the right to make the contents stored on the server accessible to the business user during his queries via the Internet and, in particular, to reproduce them for this purpose, and to reproduce them for the purpose of data protection. If third parties use the user access set up for the business user, the business user has to obtain these rights from the third parties beforehand. If the business user or his customer is posted text, image, graphic, audio or video files under his user access, the business user must ensure that he/she has the necessary rights of use and exploitation of such content. If image, graphic, audio or video files representing persons are used and made available to other users via the user access granted by 5FSoftware, the use may only be made with the express consent of all persons depicted.
(9) The business user warrants that he makes reasonable use of the contractual services in fairness to the other users. The BusinessUser undertakes to inform 5FSoftware in good time before initiating large data transfers, which can negatively affect the speed of other users. The business user must also oblige his customers to be fair. 5FSoftware will work out a solution proposal with the business user or his customers. In the event of non-compliance with the fair-use rule and the resulting repeated threat to interference-free data traffic, 5FSoftware is entitled to block access. Violation of this fair-use rule is considered to be a breach of contract and may result in consequences of damages.
Sec. 10 – Remuneration
(1) Business Users undertake to pay 5FSoftware the agreed monthly fee for the provision of the software and the granting of storage space plus the respective statutory value added tax. Unless agreed otherwise, the remuneration is based on the 5FSoftware price list valid at the time the contract is concluded. to pay vat in the relevant statutory amount of tax. Unless otherwise agreed, the remuneration is based on the price list of 5FSoftware valid at the time of conclusion of the contract.
(2) 5FSoftware is entitled to change the price list underlying its services. The change will take effect if the business user does not object to the change within one month of receipt of the change notice in text form and 5FSoftware has informed the business user in the change notice of the right of objection and the period applicable for this purpose. If the business user does not agree with the change in the price list, he can terminate the contractual relationship extraordinarily with effect from the date of entry into force of the change in the price list. If the business user does not terminate the contractual relationship, the price change shall be deemed to have been approved by him.
Sec. 11 – Warranty/liability
(1) 5FSoftware makes the 5FSoftware Platform available with reasonable care and expertise and in accordance with industry standards, but does not warrant that the Software Services is free from any errors and/or operates without interruption. The Service Level Agreements describe the measurable standards of the 5FSoftware platform and the rights of the customer in cases where these standards are not met. 5FSoftware guarantees the agreed quality of the services. Support services are provided with reasonable care.
(2) Claims for damages against 5FSoftware are excluded independently of the legal basis, unless 5FSoftware, its legal representatives or vicarious agents have acted intentionally or through gross negligence. 5FSoftware shall only be liable for slight negligence if one of the essential contractual obligations has been violated by 5FSoftware, its legal representatives or executives or vicarious agents. 5FSoftware is only liable for foreseeable damages, the occurrence of which must typically be expected. Essential contractual obligations are those obligations that form the basis of the contract, which were decisive for the conclusion of the contract and on whose fulfilment the business user may rely.
(3) 5FSoftware shall be liable without limitation for damages arising from injury to life, body or health caused intentionally or negligently by 5FSoftware, its legal representatives or agents.
(4) 5FSoftware is not liable for the loss of data insofar as the damage is due to the fact that the Business User has failed to carry out data backups to ensure that lost data can be restored with reasonable effort.
(5) The business user is liable for breaches of duty by the business user or the persons who use his user access. The business user insiscans 5FSoftware from all claims of other users and third parties directed to payment, which are asserted against 5FSoftware due to a violation of the law by the posted content and/or because of the use of the posted content by the business user, his customers or other third parties under its user access. Upon first request, the Business User shall assume all 5FSoftware incurred and reasonable costs resulting from such infringement, including the reasonable costs of legal defense. This does not apply if the business user is not responsible for the infringement.
(6) In the event that services of 5FSoftware are used by unauthorised third parties using the credentials of the Business User, the Business User shall be liable for any resulting fees within the scope of civil law liability until receipt of the customer request to change the credentials or notification of the loss or theft, if the Business User is at fault for the access by the unauthorised third party.
Sec. 12 – Duration and termination
(1) The contract shall be concluded for a period of 12, 24 or 36 months (“initial term”) and may be terminated at the end of the contract period in compliance with the notice period of 3 months. The contract is automatically renewed for another year if it is not terminated in time (“contract extension”).
(2) The contractual relationship begins with the registration and registration by the business user.
(3) A license upgrade, additional storage or additional functions can be added at any time during the contract period.
(4) The right of each Party to terminate the contract without notice for good cause shall remain unaffected. If the business user is in arrears with the remuneration due for two consecutive months or refuses to pay without a legal reason, 5FSoftware may, at its option, block access until the full receipt of the arrears or terminate the contractual relationship for good cause without observance of a notice period.
Section 13 Data Protection/Secret
(1) The business user is himself responsible for the declarations of consent required by his customers and his contractual partners in accordance with the provisions of the General Data Protection Regulation and the Federal Data Protection Act.
(2) 5FSoftware undertakes to maintain strict confidentiality regarding all confidential processes, in particular business or trade secrets of the Business User, which have come to the knowledge of 5FSoftware in the context of the preparation, execution and fulfilment of this contract and not to disclose them or exploit them in any other way. This applies to any unauthorised third parties, i.e. also to unauthorised employees of both 5FSoftware and the Business User, unless the disclosure of information is necessary for the proper execution of the contractual obligations of 5FSoftware. When in doubt, 5FSoftware shall obtain the consent of the Business User before such a disclosure. This applies to any unauthorized third party, i.e. also to unauthorized employees of both 5FSoftware and the business user, provided that the disclosure of information is not necessary for the proper fulfilment of the contractual obligations of 5FSoftware. In case of doubt, 5FSoftware will be approved by the business user before such a transfer.
(3) 5FSoftware undertakes to agree with all employees and subcontractors employed by 5FSoftware in order to prepare, execute and fulfil this contract a provision identical in content to the afore-mentioned paragraph 2.
Section 14 Final Provisions
(1) Amendments or alterations to these terms and conditions must be made in writing. This also applies also to any cancellation of the requirement of written form. This also applies to the repeal of this written form requirement.
(2) The law of the Federal Republic of Germany shall apply.
(3) The place of performance and exclusive jurisdiction for all disputes arising from or in connection with this contract is Regensburg, Germany.
(4) Should individual provisions of these terms and conditions be ineffective, this shall not affect the validity of the other provisions. The ineffective provision shall be replaced by the contracting parties by mutual agreement with a legally effective provision which comes closest to the economic meaning and purpose of the invalid provision. The above rules apply accordingly in the event of regulatory gaps.
Last update: Nov 20, 2020